Very often asked about the use made of the websites of cookie walls (or “tracer walls”), the Cnil presents initial evaluation criteria to regulate their reasonable use.
The evolution of cookie walls, which appeared on websites following the adoption of the GDPR, asks the Cnil, which is regularly contacted on this subject. These blocks for collecting consent for the use of cookies — particularly useful for targeting advertising campaigns — are increasingly giving way to a system inviting the Internet user to accept them or to pay to access a site. Pay or agree to be tracked: Internet users are faced with a hell of a dilemma. Facing a cookie wallsome of the visitors will decide to look elsewhere or to pay the amount requested, but a majority will finally accept the tracing in a forced way.
In this context and before the future European ePrivacy regulation sets a better defined framework, the CNIL published an information note and initial criteria for evaluating the use of these cookie walls. For the time being, the use of this method remains legal as long as other solutions exist for Internet users (implying other sites offering access to the same services and information without imposing cookie walls). They must nevertheless be clearly informed of the use that may be made of their data, including their possible transfer outside the European Union.
Reasonable prices and clear information
The cookie walls paying are also authorized since the system constitutes “an alternative to consent to tracers. This monetary counterpart must not, however, be such as to deprive Internet users of a real choice: we can thus speak of a reasonable price”, specifies the Cnil. This price will have to be analyzed on a case-by-case basis, and it is up to the publisher to prove that the one requested is reasonable in the event of a dispute. The Cnil also encourages publishers to present their strategy transparently to their Internet users, explaining to them how the asking price was set. Ditto when the publisher imposes the creation of a user account: this obligation must be justifiable in relation to a targeted objective.
“The publisher will have to demonstrate that his cookie wall is limited to purposes that allow fair remuneration for the service offered. For example, if a publisher considers that the remuneration for its service depends on the income it could obtain from targeted advertising, only consent for this purpose should be necessary to access the service: the refusal to consent to other purposes ( personalization of editorial content, etc.) should then not prevent access to the content of the site”specifies the regulator.
Finally, note that despite the choice of paid access to avoid cookies, a website may continue to offer a collection of consent to its visitors. This will be the case, for example, if said site integrates third-party functionalities, such as modules dedicated to social networks. These may oblige the publisher to continue to seek the consent of the Internet user for the use of such and such. “In any case, the Internet user must always have the possibility of going himself to the settings of the site to consent to certain uses”, adds the CNIL. This is far from always being the case today.