In particular, among newspapers, it has become customary to use the "paywall" as a way to access online content.The "paywall" is a mechanism that requires users to choose between accepting cookies, including profiling cookies, or paying a price to access certain contents.
In the context of personal data protection, the use of the "paywall" raises several issues in relation to the free and informed consent of users, which is a fundamental legal basis for the processing of personal data under the General Data Protection Regulation (GDPR) of the European Union.
European legislation requires consent to be free, specific and informed, and cannot be coercively conditioned. For this reason, last October 2022, the Guarantor for the protection of personal data issued two press releases in which it informed that it had opened investigations to ascertain the compliance of the aforementioned method with European legislation, expressly stating "that the European legislation on data protection personal data does not in principle exclude that the owner of a site subjects access to the contents, by users, to the consent given by the same for profiling purposes (through cookies or other tracking tools) or, alternatively, to payment of a sum of money."
It is important to note that the "cookie wall", which obliges users to accept all cookies to access web content, according to the Guidelines 05/2020 on consent, the European Data Protection Board ("EPDB") is not to be considered as freely rendered and therefore not valid.
The Italian Court of Cassation has established that it is possible to condition the provision of a fungible service on the processing of personal data for advertising purposes, provided that consent is given freely, specifically and unequivocally with reference to this purpose.
Some authorities in other European countries, such as the National Commission for Computing and Liberties (CNIL) in France, have adopted non-restrictive approaches in relation to the "paywall". The CNIL has published criteria to evaluate the legitimacy of such systems, considering, for example, the reasonableness of the asking price and the proportionality with respect to the alternative of providing personal data.
It is important to underline that the investigations underway by the Guarantor Authority for the protection of personal data in Italy could provide further clarifications and indications on the compliance of the "paywall" with the legislation on the protection of personal data. It will be necessary to wait for the conclusions of these investigations to fully understand the Authority's position on this method of accessing web content.
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