On the web, it happens that on certain sites, Internet users must choose between accepting advertising cookies or resolving to pay to access the content. And it has a name: cookie walls (or “tracer walls”, in French).
If this practice is tolerated, it has given rise to numerous complaints. The National Commission for Computing and Liberties (CNIL) published on Monday May 16 the first criteria to assess the legality of cookie walls, pending legislation on the matter. Although the CNIL does not advocate a general ban on wall cookies, it encourages publishers to use appropriate alternatives when an Internet user does not give their consent to tracers.
According to publishers’ logic, the free web is not without compensation: it comes with the personal data of Internet users, which often make it possible to finance the services of web players by resorting in particular to targeted advertising. Thus, cookies and other tracers make it possible to collect information on an Internet user such as his age, his place of residence or his consumption habits. The CNIL observes that with the rise of European rules on the collection of consent, many sites have opted for cookie walls.
What alternative(s) to tracers?
This expression designates “the fact of conditioning access to a service on the acceptance, by the Internet user, of the deposit of certain tracers on his terminal” specifies the CNIL. If Internet users refuse these trackers, the publishers of the sites that set up cookie walls seek to compensate for this loss of advertising revenue by offering financial compensation. The Internet user then chooses between tracers or a paywall.
The CNIL recalls that the Council of State ruled in 2020 that the requirement of “free consent could not justify a general ban on the practice of tracer walls, the freedom of consent of persons having to be assessed on a case-by-case basis. case, taking into account in particular the existence of a real satisfactory alternative proposed in the event of refusal of cookies”.
The criteria proposed by the CNIL to assess the legality of cookie walls are based on the most commonly observed practices and must then “be used as part of a case-by-case analysis”, justifies the regulatory authority.
The CNIL looks at whether or not there is a “fair alternative” to access the content even if the Internet user refuses tracers. Failing this, the publisher must “be able to demonstrate that another publisher offers such an alternative without conditioning access to its service on the user’s consent to the deposit of tracers” specifies the regulator. In this case, the publisher of the site which imposes consent to the tracers to access it “must be particularly vigilant to the existence of a possible imbalance between him and the Internet user”, likely to deprive the latter of a ” real choice.
No maximum price threshold
The CNIL considers that the paywall alternative is thus “not prohibited in principle”. However, this monetary consideration must “not be such as to deprive Internet users of a real choice”, namely a price which is “reasonable” says the CNIL.
To determine whether or not a rate is reasonable, the CNIL recommends a “case by case” analysis. However, the data protection authority considers that it is not in its power to set a threshold below which a tariff can be considered reasonable.
This means that each publisher who uses this practice must be able to “justify the reasonableness of the monetary consideration” that is offered to access the content. The CNIL encourages publishers to publish their analysis to demonstrate price transparency.
In its assessment, the CNIL also maintains that the mode of financing proposed by the publisher should not “systematically” take the form of a paid subscription. The publisher may choose to use virtual wallets to make micropayments. This system provides occasional access to specific content, without the user having to register their bank details.
In addition, some publishers require Internet users to create a user account. According to the CNIL, publishers must ensure in practice that such an obligation is “justified in relation to the intended purpose”.
Exceptions allowed
If a user opts for paid access, the CNIL assesses in which cases certain tracers can still be deposited.
In principle, if an Internet user rejects cookies, then “only tracers necessary for the operation of the website may be used” reminds the CNIL. But exceptions are possible, under certain conditions. If a publisher integrates external multimedia content, for example, then in this very specific case it could request the Internet user’s consent to the deposit of tracers to access content hosted on a third-party site.
In any case, the Internet user should always have the possibility of going himself to the settings of the site to consent to certain uses, underlines the CNIL.