Tracking Walls, Take-It-Or-Leave-It Choices, the GDPR, and the ePrivacy Regulation

Abstract

On the internet, we encounter take-it-or-leave-it choices regarding our privacy on a daily basis. In Europe, online tracking for targeted advertising generally requires the internet users’ consent to be lawful. Some websites use a tracking wall, a barrier that visitors can only pass if they consent to tracking by third parties. When confronted with such a tracking wall, many people click ‘I agree’ to tracking. A survey that we conducted shows that most people find tracking walls unfair and unacceptable. We analyse under which conditions the ePrivacy Directive and the General Data Protection Regulation allow tracking walls. We provide a list of circumstances to assess when a tracking wall makes consent invalid. We also explore how the EU lawmaker could regulate tracking walls, for instance in the ePrivacy Regulation. It should be seriously considered to ban tracking walls, at least in certain circumstances.

Keywords: privacy, data protection, cookie wall, tracking wall, take-it-or-leave-it, GDPR, General Data Protection Regulation, survey

JEL Classification: K12, K00, D10, D11, D20, D30, D40, D60, D70, L00, L11, L20, L51