"When assessing whether consent is freely given, utmost account shall be taken of whether, inter alia, the performance of a contract, including the provision of a service, is conditional on consent to the processing of personal data that is not necessary for the performance of that contract."
Preventing you from seeing the page you request if you do not consent seems a lot like the provision of a service conditional on consent. Obviously, that's for a judge to decide, but the law seems very clear from my perspective (IANAL, that's not legal advice).
>Preventing you from seeing the page you request if you do not consent seems a lot like the provision of a service conditional on consent.
You are correct. However, the prohibition against "a service conditional on consent" can be overcome (inter alia means "among other things") and one of the ways it can be overcome is if the user is given a choice to instead select "a consent-free equivalent service for a reasonable remuneration."[1]
This is the result of a ruling by the Austrian Data Protection Authority (DPA) evaluating an case in which users could access an Austrian newspaper by either (a) consenting to personalized advertising or (b) paying a subscription fee of 6 Euro / month.
The DPA found that these options were not considered a "significant detriment" to users (i.e. it was not considered coercive) and was therefore valid.
It's worth noting that the UK found otherwise, saying that "for the user to have a genuine choice, a consent-free alternative would have to be offered free of charge."[2]
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[1] Austrian Data Protection Authority (case no. DSB-D122.931/0003-DSB/2018)
I have read this and (IANAL) view this as a definition for what is "freely given consent". If you force users to give consent in order to use service, it isn't freely given consent. It doesn't say that you must provide the service.
I think the heart of the matter is "not necessary for the performance of that contract".
Privacy advocates argue that it's not necessary to track people to perform the purpose of a site (like, displaying news items).
Publishers argue that it's necessary to track and display ads in order for the business to be sustainable, without which they cannot continue serving news (+ ads).
I guess we'll have to wait and see what the courts have to say about this.
Maybe publishers have will have to show how much their revenue suffers if they stop tracking.
Another consideration is the demand for "privacy by design and default" (https://gdpr-info.eu/art-25-gdpr/). It might be hard to argue that business built on tracking users fulfills the criteria for that.
"When assessing whether consent is freely given, utmost account shall be taken of whether, inter alia, the performance of a contract, including the provision of a service, is conditional on consent to the processing of personal data that is not necessary for the performance of that contract."
Preventing you from seeing the page you request if you do not consent seems a lot like the provision of a service conditional on consent. Obviously, that's for a judge to decide, but the law seems very clear from my perspective (IANAL, that's not legal advice).