The decision of many news online editors to prevent access to their websites without subscribing or accepting cookies for advertising purposes is causing discussion and has once again brought to the attention of the Privacy Guarantor, so called Garante, the legitimacy of this type of tool (so-called Paywall). But what does the legislation provide for and what do the other authorities think?
There has been much talk in recent days about the initiative taken by many Italian newspapers to block access to their sites unless they purchase a subscription or consent to profiling via cookies.
The issue has been the subject of various opinions from European guarantor authorities and is currently being examined by the Garante.
But what is a cookie wall (or rather, a paywall)?
It is a particular type of cookie banner, which, unlike the classic ones, only provides a “take it or leave it” option. If you do not accept all the cookies, access will be totally or partially inhibited; if you accept them all, then you will be able to browse freely.
This type of banner is particularly used in the online publishing sector, where reading quality articles and content is conditional not only on the purchase of subscriptions or other monetary payments, but also on the possibility of exploiting users' personal data for marketing (or even profiling) purposes.
The question that arises is whether the consent given can be understood as truly “free” and what the consequences of clear monetisation of personal data might be.
But what do the regulations and the authorities say?
Today, following the initiatives taken by Italian online editors, the issue is in the process of being examined by the Garante, but in other countries the authorities have already expressed themselves on the point. In particular:
1. In France, the CNIL – Commission Nationale de l'Informatique et des Liberté has indicated certain criteria for the legitimacy of a paywall. In particular, the existence of a fair alternative for accessing the web, as well as a balance in the relationship between user and site owner (e.g. a possible dominant position on the market). The fee must also be reasonable and any registration obligation must be justified. The paywall must also not be a means of ‘bundling' with other data processing purposes that are not strictly necessary and, most importantly, in the event of payment, no cookies must be used (except technical ones).
2. In Austria, similarly, the concept of “pay or okay” is considered lawful, subject to the following conditions: compliance and conformity with privacy legislation; a non-exclusive service and a non-dominant market position of the site owner. It is also forbidden for public entities or those providing public services. The price, as in France, must be reasonable and fair and, in the latter case, no processing for advertising purposes may be carried out.
All in all, the criteria we have just seen appear to be entirely “assimilable” and replicable in our regulatory system as well, although they do suffer from a certain vagueness in certain aspects where “reasonableness” is mentioned that could become uncertain or difficult to apply.
One hopes that the Italian Garante will take a position on this point, and that the competent bodies at European level will also clarify the legitimacy of the instrument. In the meantime, one must be very cautious when using this type of banner cookie.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.