The EDPB yesterday (17 April 2024) issued its long awaited decision here on the #payorok issue, i.e. whether it is legitimate under the GDPR for controllers to make access to certain online services (such as #facebook) conditional upon the data subject consenting to behavioural advertising or pay a fee for no advertising.

The decision is not that surprising in that:

– it is addressed to large online platforms only (as defined in the decision)
– with this in mind it states that presenting data subjects with a binary choice only may in most cases not be compatible with the #gdpr general principles set out in articles 5 of the GDPR
– at least a third choice should be offered that is non Behavioural Ad supported service (such as contextual advertising) with no fee

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In essence and in short this decision consolidates a trend that commingles data protection and economic power considerations, something that we have seen in the #dma and #dsa. The main takeway for practitioners I think is this. As new business models are defined and technology evolves we should always bear this in mind.

The innovation of this decision is that the #edpb has de facto qualified Facebook and the likes as a sort of essential facility for social life of legal relevance and I think there is no coming back.