noyb.eu has taken legal action against the Hamburg Data Protection Authority (DPA) for its decision to allow the ‘Pay or OK’ model used by DER SPIEGEL online newspaper. This requires users to either consent to data tracking or subscribe to the publication, raising significant questions about the legitimacy of the consent obtained. The Hamburg DPA ruled the system permissible after nearly three years, but this decision has come under heavy scrutiny for its apparent bias and procedural flaws.
Background
In 2021, the complainant (a natural person) filed a GDPR complaint against DER SPIEGEL’s ‘Pay or OK’ banner, which forced users to either accept data tracking or pay for access. Despite the seriousness of the issue, the Hamburg DPA took almost three years to conclude that the system was legally acceptable. This conclusion was reached without thorough investigation or consultation with the complainant, raising doubts about the DPA’s impartiality and procedural integrity. The complainant argues that paying for basic rights does not equate to genuine consent, and statistics reveal that over 99.9% of users agree to tracking under this system, despite only 3-10% preferring personalized advertising.
Allegations of Bias and Misconduct
The Hamburg DPA has been accused of providing legal advice to DER SPIEGEL throughout the process, meeting with company representatives and offering feedback on proposed changes. This behavior, coupled with a nominal administrative fee of €6,140 charged to DER SPIEGEL, suggests a lack of neutrality. Additionally, it is alleged that the DPA encouraged another media company to adopt the ‘Pay or OK’ model, further undermining its role as an impartial investigator.
Read noyb’s press release here.
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