Support Centre

You have out of 5 free articles left for the month

Signup for a trial to access unlimited content.

Start Trial

Continue reading on DataGuidance with:

Free Member

Limited Articles

Create an account to continue accessing select articles, resources, and guidance notes.

Free Trial

Unlimited Access

Start your free trial to access unlimited articles, resources, guidance notes, and workspaces.

Germany: DSK publishes decision on websites' pure subscription models

The German Data Protection Conference ('DSK') published, on 29 March 2023, its decision, as adopted on 22 March 2023, regarding the evaluation of pure subscription models on websites. In particular, the DSK took the view that, in principle, the tracking of users' behaviour can be based on consent if a tracking-free model is offered as an alternative, even if this is charged. However, the DSK pointed out that the service that users receive under a payment model must firstly represent an equivalent alternative to the service that they can obtain upon providing consent; and secondly, consent must meet all the requirements under the General Data Protection Regulation (Regulation (EU) 2016/679) ('GDPR'), in particular the requirements under Articles 4(11) and 7 of the GDPR must be fulfilled.

In addition, the DSK specified that whether the payment option (e.g. a monthly subscription) can be considered as an equivalent alternative to consent to tracking depends in particular on whether the user is given equivalent access to the same service, for a fee, that is customary in the market. Further to this, the DSK reasoned that, as a rule, access can be regarded as equivalent if the offers include basically the same service at least.

Moreover, the DSK clarified that when users subscribe to the 'tracking-free' option and do not give any additional consent, pursuant to Section 25(1) of the Federal Act on the Regulation of Data Protection and Privacy in Telecommunications and Telemedia of 23 June 2021 ('TTDSG'), storage of information in the terminal equipment of the users, and access to information already stored therein, can be carried out only if it is absolutely necessary in order to provide an information society service explicitly requested by the subscriber or user.

Further, the DSK detailed that the effectiveness of the declarations of consent of non-subscribers must be ensured for the so-called pure subscription models. In this regard, the DSK highlighted that, if there are several processing purposes that differ significantly from one another, consent must be granular, specifying, among other things, that blanket overall consent for different purposes cannot be valid.

You can read the decision, only available in German, here.