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

DOI https://doi.org/10.21552/edpl/2017/3/9

Frederik J Zuiderveen Borgesius, Sanne Kruikemeier, Sophie C Boerman, Natali Helberger


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.

Dr Frederik J Zuiderveen Borgesius is a researcher at the Institute for Information Law (IViR) of the University of Amsterdam. Dr Sanne Kruikemeier is assistant professor Political Communication and Journalism at the Amsterdam School of Communication Research (ASCoR) of the University of Amsterdam. Dr Sophie C Boerman is assistant professor of Persuasive Communication at the Amsterdam School of Communication Research (ASCoR) of the University of Amsterdam. Prof Dr Natatali Helberger is professor Information Law at the Institute for Information Law (IViR) of the University of Amsterdam. For correspondence: <mailto:f.j.zuiderveenborgesius@uva.nl> All authors cooperate in the Personalised Communication Project <http://personalised-communication.net>. The research for this article was made possible with the help of research funding from the University of Amsterdam (Personalised Communication - PI’s Prof Dr Claes de Vreese and Prof Dr Natali Helberger), and a research grant from the European Research Council, ERC, under Grant 638514 (PersoNews - PI N Helberger). The authors would like to thank Joyce Neys, Candida Leone, Sarah Eskens, the participants in the discussion at the TPRC 44th Research Conference on Communications, Information and Internet Policy, Washington (October 2016), and the anonymous peer reviewers for their valuable comments on drafts for this paper.

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