Paying to avoid advertising cookies, is it legal?

Sites like Allociné or JeuxVideo.com have recently asked Internet users to choose between a monthly payment or advertising cookies to access their content. What is it about ? And above all, is it legal? It is not so simple.

Is it legal to ask Internet users to pay a small amount each month, for example two euros, so as not to have advertising cookies? In a way, this is the question that is emerging, especially on social networks. Indeed, Internet users were taken aback to see that by going to sites, they may be asked to pay to escape targeted advertising.

The most significant example was shared by journalist Alexandre Laurent, concerning the jeuxvideo.com site. There are two possible choices: “” or “”. In theory, it is impossible to visit the site without making one of the two choices. No refusal seems possible. In any case, none is offered.

This policy implemented on jeuxvideo.com in fact extends to other properties of Webedia. We find the same panel superimposed when visiting a site such as Allociné, Ozap, PurePeople, or even TerraFemina. Certain subsidiaries are not (yet?) Concerned and the amounts requested may vary: in the case of Ozap and TerraFemina, it is a question of a single monthly euro.

Of course, for those who have a little computer skills, it is possible to bypass this screen. If you block cookies in your web browser and pretend to accept them on the site, you can access its content. Extensions also allow to neutralize certain scripts, to hide this screen. However, this can then lead to navigation difficulties.

The case of jeuxvideo.com is not isolated: this type of display also exists on Le Monde. Journalist Alexandre Léchenet also points out that such an insert appears when visiting the newspaper. the Internet user must then make a similar choice: subscribe (9.99 euros per month) or accept advertising cookies. In this case, access to the site is free – or at least it is cashed otherwise.

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Welcome to a world of “cookie walls”

These screens which impose two choices on the Internet user, and not always the ones he wants, are called “cookie walls”. They literally intervene between the site and its visitor, asking him to choose, or to leave. However, the question of the legality of the practice of cookie walls is discussed. We see it in particular in some discussions on social networks, in reaction to the captures.

Some people thus evoke a “”, others wonder if this is indeed in line with the General Data Protection Regulation (GDPR) and, more specifically, the freedom of consent. In particular, the Internet user must not be prejudiced if he gives or withdraws his consent. However, one could argue that there is a prejudice, that of not being able to access the article.

“Accept cookies? “. It all depends on which ones… // Source: Yann Cœuru

This uncertainty is mentioned by the National Commission for Informatics and Freedoms (CNIL) in a frequently asked questions dated March 18. “”. However, the difficulty lies in the fact that it is impossible, in the current state of affairs, to give a general assessment.

These cookies walls have flourished these days, because advertising players and sites had until March 31, 2021 to comply with the recommendations of the CNIL in terms of cookies and tracking tools. If this is not the case, checks, which are to begin in April, could lead to possible sanctions. According to the Journal du Net, which reviewed the 50 main sites, the use of the cookie wall is still very low.

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The site also mentions the case of the site, which seems to evaluate different options, including the cookie wall. He also returns to the cases of Prisma Media and Webedia, with comments – in particular, it is reported that, in the case of Webedia, even if one pays the two euros requested, for example for Allociné, advertising displays are still planned, but not targeted.

Where do these “cookie walls” come from?

Initially, the CNIL was hostile to these cookies walls. To his eyes, ” “. This ban was included in its Cookie and Tracker Guidelines of July 2019.

But a year later, in June 2020, the Council of State limited the general and absolute nature of a ban on cookies walls: for the highest body of the French administrative order, “”. The body considered that “” in the matter.

Contacted about this, the CNIL informed us that it would come back to us shortly.

In fact, the CNIL is forced to take this reality into account. She said she strictly complied with it. It is for this reason that, in her FAQ, she says that “”. In particular, the CNIL invites sites to clearly state the possible consequences, such as “”.

“”

Verifications, moreover, could take place. According to a letter dated March 26 from the CNIL to Geste, the lobby of editors of online content and services, that Context publishes, the supervisory authority declares that it “”

“”, She adds. In March, the CNIL announced that it would make compliance with the applicable rules a priority in 2021.

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The fact remains that there is a kind of floating period, which the sites undoubtedly benefit from as well. Indeed, it should be noted that the decision rendered by the Council of State was “”. The subject therefore does not appear to be fully settled. This is shown by another element of the CNIL letter to the Geste, which evokes the European question.

Numerama cookies

Numerama cookies

Source: Claire Braikeh for Numerama

The letter mentions an alternative to the cookie walls that the publisher should provide. This lead appears in working papers on a future regulation, ePrivacy. The European Data Protection Board (EDPS) has expressed support for an explicit ban on cookie walls in the ePrivacy regulation. The CNIL is a member of the EDPS and has logically adopted this orientation.

However, writes the CNIL, which says to wait for a “”, “” to the cookie wall. She adds that this lead was still in the latest work on the ePrivacy regulation under the aegis of the Portuguese Presidency of the Council of the EU, which took office in early 2021.

Unsurprisingly, the reception of Internet users with regard to these walls of tracers is cold, not to say icy. If advertisers legitimately seek to reach an audience and sites to enhance their content, and thus pay the salaries of their staff, public tension is to be feared. Sufficient, perhaps, to push more Internet users to block cookies.

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