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

TL;DR

This paper examines the legality and fairness of tracking walls under EU privacy laws, analyzing conditions for valid consent and proposing potential regulatory bans to protect users.

Contribution

It provides a legal analysis of tracking walls under GDPR and ePrivacy Directive, and suggests regulatory measures to address their fairness and legality.

Findings

Most users find tracking walls unfair and unacceptable

Certain conditions can invalidate consent given through tracking walls

Proposes banning tracking walls in specific circumstances

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.