Paradox of Free Choice in Consent or Pay

EDPB was caught between a rock and a hard place when writing its opinion on Consent or Pay for large online platforms ('Opinion'). It didn’t hide its aversion for behavioural advertising, but couldn’t discard that CJEU and several EU DPAs have acknowledged the legality of these models under certain conditions (cfr. my previous article on emerging requirements for Consent or Pay).

Most summaries of the Opinion mention the strong recommendation to offer a third “free alternative without behavioural advertising” (‘FAWBA’). I would argue it is just one specific solution for a specific context. This third article in a series on Consent or Pay dives into the application and conceptual flaws of FAWBA.

What is FAWBA and when does it apply? 🆓

EDPB recommends large online platforms present three options – equivalent in terms of quality and functionality – for Consent or Pay:

• Select behavioural advertising and access for free;
• Select contextual or untargeted advertising and access for free; and
• Access for a fee without behavioural advertising.

EDPB recommends FAWBA in the context of large online platforms. Reading between the lines, this definition clearly targets omnipresent social media platforms like those of Meta. Broader criteria such as a large user base and large-scale processing attempt to present a more objective definition and, inadvertently or intentionally, expand the scope to many other digital service providers including publishers.

Is FAWBA necessary, then? EDPB makes a strong recommendation on several occasions¹ and argues FAWBA plays a “relevant role to remove, reduce or mitigate the detriment that may arise for non-consenting users from either having to pay a fee to access the service or not being able to access it”. This boils down to a clear power of imbalance or conditionality.

However, it is just one approach to reducing detriment and does not mean alternative approaches are invalid. Even in the context of a clear power of imbalance, which does not leave room for any ‘adverse consequences at all’ ², FAWBA is only a suggested solution.

Moreover, most digital service providers don’t exercise meaningful control over users and, hence, the bar for detriment is higher (read more here). If publishers present a reasonable priced Pay option that meets the criteria for equivalence, granularity and the absence of behavioural tracking, they don’t need FAWBA.

Same same, but different 🍎🍊

Contextual ads generally yield lower revenues per impression than behavioural ads. Contextual targeting works for niche audiences (e.g., specialty coffee) and clear buying intents (e.g., classifieds site for cars) but doesn’t provide a good fit for general purpose news (e.g., war coverage). Behavioural ads generally offer more precise targeting - based on the viewability and click-through rates – for most online content.

If a publisher wants to fully offset behavioural advertising revenues with contextual ads only, the number of ad slots may have to double or triple. Leaving the relevance of ads aside, does EDPB consider increased ad exposure equivalent in terms of quality, especially on mobile screens?

FAWBAWCFCA 😝

The EDPB guidelines on the technical Scope of the ePrivacy Directive, expand the definition of ‘gaining access’ and ‘storage’ to virtually all requests over the public internet and any storage on a terminal equipment. Any information processing therefore requires consent or an exemption thereof. EDPB has previously stated contextual advertising does not benefit from the narrowly defined Cookie Consent Exemptions³.

Is FAWBA then a Free Alternative Without Behavioural Advertising With Consent for Contextual Advertising (FAWBAWCFCA)? In a typical Consent or Pay model, Pay represents an unambiguous refusal of behavioural advertising. A third option can mean yes and no. If FAWBA represents a consent for contextual advertising, it is unclear how the user can opt out. Does a user have to select the ‘Pay’ option or do they need a fourth alternative without any ad performance measurement tracking and frequency capping?

If FAWBA acts as a refusal of behavioural advertising, the digital service provider needs to request consent after the Consent or Pay screen. This option is then more tedious – at least two screens and two clicks – than accepting behavioural tracking.

Contextual can be intrusive as well 😱

As a privacy auditor of programmatic traffic, I don’t dispute that programmatic can be intrusive. Yet it doesn’t have to be. Programmatic requests can be limited to individual advertisers based on the recognition of a pseudonymous identity following a single event such as visiting an online store.

Contextual advertisements are indeed less intrusive in the sense that the targeting doesn’t require a user profile based on online behaviour. However, contextual ads can propagate a sensitive context such as the following examples of the content taxonomy by IAB Tech Lab⁴ illustrate: Divorce, Special Needs Kids, Smoking Cessation, Cancer, Infertility, Sexual Conditions, Substance Abuse.

The Transparency and Consent Framework distinguishes the “basic selection of ads” and “the creation of an advertising profile” and “the selection of ads based on a profile”. These are different purposes with their own privacy-utility trade-off. It is therefore surprising that EDPB favours one form of advertising over another and compares processing activities from different purposes. Intrusiveness, as evaluated through purpose limitation and data minimisation, should be evaluated for both purposes separately.

Summary

Digital service providers generally don’t rely on contextual advertising alone because of the lower revenues per impression. Providers must only consider FAWBA if there is a clear power of imbalance between them and their users or a concern for conditionality. I hope the upcoming general guidelines on Consent or Pay clarify the practical implications of FAWBA and present a much broader set of options to limit detriment.