A lot of German newspapers seem to use this model and nobody has successfully challenged their interpretation yet.
https://noyb.eu/en/pay-or-okay-tech-news-site-heisede-illega...
However, law is slow and it will take a while to propagate to more sites.
It doesn't seem to declare that the model is fundamentally illegal. Also, wouldn't that kind of decision need to be taken at the EU level? Because until then, you could have all sorts of inconsistencies between localities and countries.
For example, the ICO link specifically states that it's OK to make a customer rewards loyalty card dependent upon tracking -- a clear exchange of allowing tracking explicitly in exchange for cash equivalents. That's still consent freely given.
A lot of the limits around consent are described with regards to employment, because there's an imbalance of power there. But that's irrelevant here.
The clearest prohibition is around "coupling", e.g. you can't make a purchase of an online grocery order contingent on sharing your data with third parties, because there's nothing "necessary" about that to fulfill the purpose.
But it seems pretty easy to make the case that tracking is "necessary" for fully effective advertising (ads without tracking perform much worse). So either subscribe for no ads (thus no tracking), or accept ads (and accept tracking). There doesn't seem to be any imbalance of power here, because you don't need to use Facebook the way you need to keep a job. Your consent is freely given, just like with a rewards card.
Although at the end of the day, the law does seems vague enough that it will be useful for a court decision to clarify it.
However, linking the lack of tracking with buying a zero advertising tier is clearly coupling not a discount. Consider the reverse what if someone wants to pay for zero advertising but is perfectly willing to have tracking. Thus we’ve discovered 4 possible decisions and FB is trying to artificially limit them.
Are the courts really supposed to mandate that FB provide 4 tiers instead of just 2?
We're already in checkbox hell with the various popups. And the notion of "coupling" is notoriously hard to define in practice.
It's precisely the vagueness around what is and isn't coupling, that I could see the courts going either way. I was really just arguing that it's not clear cut according to the law as written.
They can have 2 options advertising based with and without tracking, or 3 if they add paid without tracking etc.
It’s the same deal as wheelchair access. You don’t need to have stairs if you’ve got a ramp, but stairs alone doesn’t qualify as wheelchair accessible.
I doubt EU lawmakers planned for this approach to defeat privacy laws, it's definitely against the spirit but this will need an update. In FB case if you pay they 100% still track you anyway, they've been pretty clear they don't care even if they get caught.
Another angle against FB moving to a paid access system would be they could be considered public service due to how omnipresent the service is in day to day life, but lately it's probably more true for their other services like Insta or Whatsapp.