30 May 2018 | Lucia Moses | Digiday
Some U.S. publishers have blocked visitors from the E.U. to their sites rather than comply with the wide-ranging General Data Protection Regulation to protect people’s online privacy.
The Washington Post went an extra step and put up a paywall for E.U. visitors, upselling them to a $90 a year “premium EU subscription” in exchange for no ads — and the privilege of not having their data tracked.
The premium subscription is $30 more than the cost of a basic online subscription to the Post.
“This is something we’ve been working on for a long time to create transparency, minimize friction for our readers and ensure compliance,” emailed Miki King, vp of marketing at the Post. “Our approach was to give readers an additional option beyond our consent-based offerings of free limited access or a subscription. We’ve now added a third option that offers no third-party tracking or advertising at a premium.”
The Post wouldn’t comment on the legal basis for the offer, but some question the offer’s legality. The GDPR requires businesses to justify collecting people’s online data, by getting their consent or through other means. The question is whether the Post’s offer flies in the face of the law’s requirement that consent be freely given.
Tim Turner, a U.K.-based independent consultant who trains companies in GDPR, said the Post is “forcing consent for the free option and making you pay for the tracking-free option. Forcing those who can’t/won’t pay to accept tracking seems to kill legitimate interests. Either way, I think it’s likely to be a breach.”
IAB Europe last fall published a paper saying that “private companies are allowed to make access to their services conditional upon the consent of data subjects.” Johnny Ryan, formerly head of ecosystem at anti-ad blocking firm PageFair, disagreed, saying the GDPR forbids such “tracking walls.”
“It’s all measuring what does it mean for something to be freely given,” said Gary Kibel, partner in the digital media, technology & privacy practice at the law firm Davis & Gilbert.
Kibel, who represents clients in advertising, publishing and ad tech, wouldn’t offer an opinion on the legality of the Post’s approach, but did point out that a question is whether this approach arises to the level of violating that “freely given.” Employees, for example, can’t be considered to be freely giving consent if their job depends on it. “Is viewing a website equivalent to that?” he said. “Probably not.”
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