[Ukv]

> That's exactly my point. The GDPR does not say that it is illegal. It says that people must have a genuine choice [...] arguing that "accept or you need to pay to access this news website" is the same and not a genuine choice is almost pushing the interpretation ad absurdum

"Genuine choice" alone isn't sufficient - from the GDPR:

> > Consent is presumed not to be freely given if it does not allow separate consent to be given to different personal data processing operations despite it being appropriate in the individual case, or if the performance of a contract, including the provision of a service, is dependent on the consent despite such consent not being necessary for such performance.

It seems difficult to argue that DerStandard's "pay or okay" approach satisfies this - and indeed the court found it did not.

My impression as a non-lawyer is that the "freely given consent" basis is intended to cover where users opt to give data truly of their own violition, but is instead being used as the "continue on selling data as we were" basis (funnel users into clicking a button, then use that as a carte blanche for effectively any processing).

> The real world never so simple. In the real world if they don't "just" do that it is probably because it isn't working commercially.

I feel the problem is that as soon as one party starts using invasive ads, other parties are at a relative disadvantage and will be paid less than before if they don't follow suit. Seems like the kind of game theory problem that the market is bad at, but regulation can resolve favorably.

[mytailorisrich]

> It seems difficult to argue that DerStandard's "pay or okay" approach satisfies this

Why not? Is it not necessary to pay for the service? As long as they are only processing what is necessary for the ads to work then I argue that it is necessary, and they are given a choice, too.

We're going in circle a bit... And always come back to my previous point that in general those decision interpret the GDPR in the most extreme way possible, ignoring real world scenarios and the whole range of circumstances, which I can only describe as a "militant" approach. Unfortunately this is quite common on most issues these days.

> I feel the problem is that as soon as one party starts using invasive ads

It's not invasive ads, it's targeted ads. Targeted ads are more valuable than non targeted ads because they work better. That's it. And, frankly, if I am going to see ads I might as well see targeted ones, which at least I have a chance of finding interesting (that's the whole point) rather than having to endure tampon ads while I am reading the news.

The whole thing is purely political, even ideological.

[Ukv]

> Why not?

It doesn't seem to allow separate consent to different personal data processing operations to be given, for one.

> Is it not necessary to pay for the service?

That it is possible to pay instead implies that the processing of the data is not necessary (which is taken as being objectively necessary for the core functions of the contract, not financial convenience).

To my understanding the reason that "despite such consent not being necessary for such performance" wording is there in the first place is because necessity for performance of the contract is already its own basis. Their attempt to obtain freely given consent is because their purpose is not actually necessary, else they could use that on its own as the basis for the processing.

> always come back to my previous point that in general those decision interpret the GDPR in the most extreme way possible, ignoring real world scenarios, which I can only describe as a "militant" approach. Unfortunately this is quite common on most issues these days.

The idea that "it is necessary for our balance sheets to sell your data" would be sufficient for any and all processing seems the most extreme one to me.

> It's not invasive ads, it's targeted ads. [...] And, frankly, if I am going to see ads I might as well see targeted ones,

Ads targetted by building up a profile of where you live, who you interact with, what sites you browse, maybe even what you're susceptible to (FOMO, gambling), etc.

GDPR doesn't prevent you from opting to receive targeted ads if you really do freely give your consent (with no detriment if you were to decline).

> Targeted ads are more valuable than non targeted ads because they work better.

Invasive ads work better for gaining market share in the same way a JS bitcoin miner that uses more of website visitors' GPUs works better. The first sites to deploy it get paid more, but then when all sites are using it we're pretty much back where we started (because it's largely a zero-sum game) but with waste and harm disproportionate to benefits when allowed to go too far.

That's where I think it makes sense for regulation to impose a limit, to stop the downwards slide to a worse overall outcome that can happen when each party is acting in their own immediate interest.

[mytailorisrich]

> Their attempt to obtain freely given consent is because their purpose is not actually necessary, else they could use that on its own as the basis for the processing.

Why would the GDPR even describe consent and consent in relations to contract, then?

> The idea that "it is necessary for our balance sheets to sell your data" would be sufficient for any and all processing seems the most extreme one to me.

That's an obviously disingenuous interpretation of my point.

> GDPR doesn't prevent you from opting to receive targeted ads if you really do freely give your consent (with no detriment if you were to decline).

This implies a right to access commercial websites for free, which cannot be reasonable, or only a choice between no access and payment, which also cannot be reasonable.

Again, this is all extreme and ideological. That's the big issue with both the GDPR and its interpretation. And we're right back to my initial point that the issue is in the hands of militants.

More broadly, this is a strange take in the EU: The same people that are happy to have to carry ID cards, to have "free speech" controlled, to have this, to have that, are up in arms at the thought of targeted ads. My hypothesis is that this is because, at the core, the issue is not "privacy" or targeted ads, but commercial companies making money, i.e. bad capitalists (c.f. previous paragraph), which is a political angle that we're seeing very often in Europe, along with the idea that people are allowed free will as long as they make the "right" choices...

[yladiz]

> This implies a right to access commercial websites for free, which cannot be reasonable, or only a choice between no access and payment, which also cannot be reasonable.

What do you mean the latter isn’t reasonable? It is perfectly reasonable to make your website only accessible to paying users.

> More broadly, this is a strange take in the EU: The same people that are happy to have to carry ID cards, to have "free speech" controlled, to have this, to have that, are up in arms at the thought of targeted ads.

Ignoring the obvious geopolitical spin to this: The EU considers privacy a right, i.e. something you can’t sell away in a contract, so I don’t see the issue with people being upset about their right to privacy being affected.

[mytailorisrich]

> The EU considers privacy a right, i.e. something you can’t sell away in a contract

You can sell your privacy in a contract in the EU. This actually highlights the incoherence here, and my point to some extent.

And there is no geopolitical spin since I am an EU citizen myself. It is just that I think that the EU is going to shit a little more every day.

[yladiz]

Why is sell in quotes? What do you mean by sell here?

[Ukv]

> Why would the GDPR even describe consent and consent in relations to contract, then?

Freely given consent is a lawful basis, allowing for processing even if it's not necessary for legal/contractual reasons that would qualify the processing for another basis (or a mix of necessary and unecessary).

But here they're clearly not meeting the "allow separate consent to be given to different personal data processing operations" requirement, and if they only met the second requirement (can't make performance of contract dependant on the consent to processing beyond what's necessary) by nature of all of their processing being necessary (which I feel is highly doubtful) then it seems like they would've already been covered by the "processing is necessary for the performance of a contract" basis. Though as before I'm not a lawyer.

> That's an obviously disingenuous interpretation of my point.

Necessity for the performance of a contract is a lawful basis for processing under the GDPR, and to my understanding you're suggesting "necessity for the performance of a contract" should be interpreted loosely to include a kind of "financial necessity" that permits selling personnal data to adtech companies.

To me it seems like that same justification could be used for any selling of personal of data (maybe I go too far by saying any processing, since it wouldn't necessarily justify non-commercial processing). If you don't think that's a consequence of your interpretation, I'd be interested to hear why.

> This implies a right to access commercial websites for free, which cannot be reasonable, or only a choice between no access and payment, which also cannot be reasonable.

Websites can use most forms of monetization they always have - just not selling of personal data (unless the user freely gives consent). Regular ads, selling an ad-free version, upsell nags, all the badges/superchats/cosmetics/etc. are all still fine.

[mytailorisrich]

> Freely given consent is a lawful basis, allowing for processing even if it's not necessary for legal/contractual reasons that would qualify the processing for another basis (or a mix of necessary and unecessary).

Again, this is all a narrow and militant interpretation of "necessary for contractual reason", not least when all data show that the people are fine with it. In a contract, a form of quid pro quo is necessary, if targeted ads are the form of "payment" asked and if there is no imbalance of power or coercion (and it's hard to see how being refused access to a random website any sort of coercion or serious negative consequence) then there should be no issue and the "deal" is actually the main aspect of the contract. Any other outcome is either that the GDPR is badly drafted or that this is an ideological agenda at play (obviously I favour the latter).

[Ukv]

> Again, this is all a narrow and militant interpretation of "necessary for contractual reason",

Given "necessary for contractual reason" is on its own a lawful basis, I don't see how your interpretation (that selling your data to ad companies is "necessary") wouldn't effectively nullify much of the GDPR, allowing pretty much any use of customer data to be justified so long as the company makes money from it.

The European Data Protection Board, whose purpose is to ensure consistent application of the GDPR, has written:

> > If there are realistic, less intrusive alternatives, the processing is not ‘necessary’. Article 6(1)(b) will not cover processing which is useful but not objectively necessary for performing the contractual service [...] even if it is necessary for the controller’s other business purposes.

> > A controller can rely on the first option of Article 6(1)(b) to process personal data when it can [... establish ...] processing is necessary in order that the particular contract with the data subject can be performed. [Emphasis in original]

> > does not cover situations where the processing is not genuinely necessary for the performance of a contract

> > it is required that the processing is objectively necessary for a purpose that is integral to the delivery of that contractual service

> > Example 2: The same online retailer wishes to build profiles of the user’s tastes and lifestyle choices based on their visits to the website. Completion of the purchase contract is not dependent upon building such profiles. Even if profiling is specifically mentioned in the contract, this fact alone does not make it ‘necessary’ for the performance of the contract. If the on-line retailer wants to carry out such profiling, it needs to rely on a different legal basis.

(https://www.edpb.europa.eu/sites/default/files/files/file1/e...)

> not least when all data show that the people are fine with it.

Doesn't appear to be the case when the case when it's actually a freely given choice (as low as 0.1% when it's opt-in) - which is why companies fight so hard to manipulate user choice with dark patterns and obfuscation, or outright breaking the regulation.