“Consent or Pay”: a mechanism contrary to the GDPR?

The Austrian Federal Administrative Court recently redesigned a model of” Consent or Pay ” set up by the daily Der Standard. This decision is part of a European context marked by the multiplication of “consent or pay” offers, adopted in particular by Meta, and raises a central question: can we really speak of free consent when the alternative is to pay to protect one's privacy?

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This debate does not only concern digital giants or press publishers. Many digital service providers are now exploring monetization models that include personalized advertising, behavioral data collection, or freemium versions that are conditioned to a certain level of data processing. In this context, the lessons learned from the Der Standard decision are valuable.

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The principle of” Consent or Pay ”

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The” Consent or Pay ” (or” Pay or OK ”) is based on a binary choice: either the user consents to the use of his personal data for targeted advertising, or he refuses and must pay a financial consideration, often in the form of a subscription.

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Faced with the erosion of their advertising revenues, European media quickly adopted this system in an attempt to reconcile free content on the Internet and compliance with the GDPR.

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This mechanism seduced Meta, which, as early as 2023, offered on its Instagram and Facebook platforms a monthly subscription without advertising for users refusing to follow. But is this alternative really in line with European law?

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Criticism from data protection authorities

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If the mechanism of the” Consent or Pay ” is regularly debated and criticized, the authorities who decide on the subject always bring the discussion back to the same principle: consent is only valuable if it is truly free. As soon as the paid option becomes disproportionate or no equivalent alternative is available, the choice offered to the user is reduced to a disguised constraint.

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The European Data Protection Board (“EDPB”) thus underlined, in a 2024 review, that most models” Consent or Pay ” do not guarantee valid consent. According to him, the major platforms should offer a truly equivalent and free option.

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The CNIL, for its part, has spoken directly on the question of” Cookie Walls ”, which concretely illustrate the difficulties associated with the validity of consent in the models” Consent or Pay ”. It admits that a publisher can condition access to its content on the acceptance of trackers, but only if a real, satisfactory and proposed alternative at a reasonable rate exists.

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As for the European Commission, it fined Meta 200 million euros in April 2025 for non-compliance with the Digital Markets Act, precisely blaming the company for not offering an option that was really equivalent to paying for the subscription.

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It is therefore questionable whether the recent Austrian decision constitutes a real turning point, or if it is simply a continuation of the positions already adopted by the European authorities.

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Major economic implications for platforms

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The debate around” Consent or Pay ” cannot be separated from the economic challenges it raises for publishers of digital services. In practice, the “ad-free” subscription rate must compensate for the loss of advertising revenue while remaining acceptable to the user. If the amount is considered excessive, it risks turning the alternative into an economic constraint, thus compromising the freedom of consent.

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In addition, there are the technical and organizational costs associated with the implementation of compliant consent: granularity of purposes, user experience, compliance of consent management platforms (CMPs), etc. These requirements can represent a significant burden, especially for intermediate-sized players.

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However, a well-calibrated model can become a lever for differentiation: diversification of revenue sources, clear segmentation of the offer (freemium/premium), promotion of an ethical positioning in terms of data, retention of customers who are sensitive to the protection of their privacy. However, this promise must be legible, credible and economically sustainable.

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Pitfalls to avoid: the global consent trap

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The decision rendered against Der Standard does not simply condemn the model of” Consent or Pay ”. It focuses primarily on the methods of implementation, and in particular on the lack of granularity of consent. The Austrian Federal Administrative Court criticized the daily for having imposed on Internet users a global agreement for advertising monitoring, without the possibility of distinguishing the different processing purposes. However, the RGPD precisely requires that consent be specific, given purpose by purpose, so that the user can exercise real control over their data.

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In other words, the problem was not so much in the existence of the mechanism as in how it was applied. Fortunately, several criteria emerge from the positions of European and national authorities. These criteria offer a frame of reference for actors wishing to implement this type of model.

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First, the requirement of a Real choice. The EDPB pointed out that consent is not free if the user is locked into a binary alternative: paying for or accepting targeted advertising. To be valid, the option offered in case of refusal must be equivalent and, ideally, free. This is where contextual advertising comes in, which makes it possible to finance a service without resorting to intensive profiling.

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Then, the Price question is central. The CNIL, in its criteria relating to Cookie Walls, admitted the possibility of requesting a financial contribution. But it must remain reasonable and not push the user, by economic constraint, to give up his privacy. The rate must therefore be proportionate to the service provided and justifiable in a transparent manner. With this in mind, Meta lowered the amount of its subscription a few months after the establishment of its mechanism of” Consent or Pay ”.

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Finally, consent must be obtained purpose by purpose : targeted advertising, content personalization, sharing with third party partners, etc. Without this distinction, the user is forced to enter into a global agreement that makes freedom of choice meaningless. It is precisely this failure that has earned the condemnation of Der Standard. This necessary granularity had already been recalled by the CNIL in its article dedicated to Cookie Walls.

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In short, if you are considering implementing a model of” Consent or Pay ”, you should keep in mind that this is not a miracle solution but a demanding mechanism, closely monitored by the authorities. More generally, the issue of cookies remains a hot topic: new recommendations, such as those recently published by the CNIL on audience measurement tools, recall that it is essential to remain attentive to regulatory and jurisprudential developments.

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For any questions or support, do not hesitate to contact us by writing to cchance@squairlaw.com.

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Caroline Chancé, partner and Victoire Grosjean-Moretti, associate at Squair