On May 16, 2022, the CNIL published the latest evaluation criteria regarding the “cookie walls”, (the tracer walls). This alternative to traditional cookies consists of offer an alternative to Internet users who refuse to accept cookies. Some publishers use the ” paywall », a practice which obliges Internet users to pay a sum of money to access the site. The CNIL imposes new criteria.
The democratization of cookie walls
In its article published on Monday, the National Commission for Computing and Liberties explains that it was “regularly questioned on the subject of cookie walls and received numerous complaints”. This is why the CNIL has decided to publish the first criteria to assess the legality of such a practice. If traditional cookies collect information about an Internet user such as their age, place of residence or even their interests and consumption habits, to then offer them advertisements that are likely to interest them and therefore generate a purchase, cookie walls act differently.
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A new law, introduced two years ago, requires websites to obtain the prior consent of Internet users to the deposit of these tracers. As cookies are less and less accepted, many sites have chosen to use cookie walls. This practice consists of offering a particular alternative to Internet users, in the event of refusal of cookies. This alternative choice is nothing but a financial considerationwe then speak of “paywall”. Concretely, the Internet user who refuses to accept cookies is obliged to provide a sum of money to access the site. A means of compensating for the loss of advertising revenue, resulting from the absence of cookies.
CNIL evaluation criteria
Setting up cookie walls is legal. However, the CNIL considers that “conditioning the provision of a service or access to a website to the acceptance of the deposit of certain tracers is likely to infringe, in certain cases, the freedom of consent”. Thus, the Commission would like their legality to be assessed taking into account the existence of real and satisfactory alternatives proposed in the event of refusal by the tracers. Pending a position from the Court of Justice of the European Union, the CNIL considered it useful to publish criteria to assess the legality of such practices.
On this subject, the Commission specifies that all the principles of the GDPR “remain applicable to data processing related to the use of cookie walls”. The question to ask is the following: does the Internet user who refuses cookies have a fair alternative to access the content? Publishers should be able to offer an alternative “real and fair” allowing access to the site and which does not imply having to consent to the use of their data. On the issue of paid alternatives. The CNIL considers that this monetary consideration should not be “of such a nature as to deprive Internet users of a real choice: we can thus speak of a reasonable price”.