This comprehensive analysis examines cookie walls and cookie paywalls—mechanisms that restrict website access unless users accept tracking cookies or pay subscription fees—from both legal and practical perspectives. The research reveals that while cookie walls remain largely non-compliant with the General Data Protection Regulation (GDPR) and are prohibited or heavily restricted across most European jurisdictions, “consent or pay” models occupy a more complex legal gray area that has become increasingly scrutinized by regulators and courts. The European Data Protection Board’s Opinion 08/2024 articulates strict requirements for these models, emphasizing that platforms must offer genuinely equivalent alternatives without behavioral advertising at no cost for consent to be considered freely given. Recent enforcement actions against Meta (€200 million fine under the Digital Markets Act), the Austrian newspaper Der Standard, and other platforms underscore regulatory commitment to protecting user autonomy. This report synthesizes current legal standards, regulatory approaches across jurisdictions, economic implications of these mechanisms, and practical alternatives that balance publisher revenue needs with user privacy rights in an evolving digital advertising landscape.
Foundational Definitions and Technical Framework
Before examining the legal complexities surrounding cookie walls and paywalls, it is essential to establish precise definitions and understand how these mechanisms function within digital ecosystems. A cookie wall, sometimes referred to as a “tracking wall,” represents a fundamental barrier to website access that forces users into a binary choice: accept all cookies or lose access entirely. The defining characteristic of a cookie wall is the absence of a genuine refusal mechanism—users cannot decline cookies and proceed to browse the website, nor can they customize which types of cookies they accept. This mechanism operates as a complete obstruction, functioning like a security gate that remains closed until users provide affirmative consent to tracking technologies including those for behavioral advertising, analytics, and third-party tracking.
In contrast, a cookie paywall or “consent or pay” model presents users with a more complex choice architecture. Under this framework, users receive the option to either consent to data collection and behavioral advertising to access the website without payment, or alternatively pay a subscription fee to access equivalent content while avoiding comprehensive data tracking. The theoretical advantage of this approach compared to a pure cookie wall is that users possess what appears to be a third option—namely, paying for privacy—rather than facing a stark choice between surveillance and exclusion.
A “soft” cookie wall represents a middle ground between these two extremes. Rather than completely blocking access, a soft cookie wall grants users limited functionality or access to general content but restricts access to premium or specialized features unless they accept cookies. This approach theoretically accommodates some of the GDPR’s requirements by allowing users at least minimal access to a website’s core services, though it continues to condition access to significant portions of content on cookie acceptance.
Understanding the technical mechanics of how cookies function within these frameworks is equally important. Cookies themselves are small text files stored on users’ browsers that collect and transmit information about user behavior, preferences, and device characteristics. The ePrivacy Directive and GDPR distinguish between essential cookies necessary for website functionality and non-essential cookies used for analytics, behavioral advertising, and personalization. According to Article 5(3) of the ePrivacy Directive, the storage of information or gaining access to stored information on user terminal equipment requires prior consent unless the storage is strictly necessary for providing an explicitly requested service. This regulatory foundation applies not only to traditional cookies but also extends to modern tracking technologies including tracking pixels, unique identifiers, and tracking URLs.
The GDPR Framework: Article 4(11) and the Concept of Freely Given Consent
The legal analysis of cookie walls and paywalls must fundamentally center on the GDPR’s definition of valid consent, which serves as the cornerstone for all cookie-related compliance obligations in Europe. Article 4(11) of the GDPR defines consent as “any freely given, specific, informed and unambiguous indication of the data subject’s wishes by which he or she, by a statement or by a clear affirmative action, signifies agreement to the processing of personal data relating to him or her”. This definition establishes four distinct and equally necessary requirements that must all be satisfied for consent to constitute a valid legal basis for data processing. The principle of “freely given” consent requires that individuals possess genuine freedom of choice without being subject to coercion, pressure, or consequences that would compromise the voluntary nature of their decision.
Recital 42 of the GDPR provides crucial elaboration on the “freely given” requirement, stating explicitly that “Consent should not be regarded as freely given if the data subject has no genuine or free choice or is unable to refuse or withdraw consent without detriment”. This language establishes that coercion takes multiple forms—it encompasses not only direct threats but also situations where refusing consent results in significant negative consequences or loss of access to essential services. The critical implication for cookie walls is immediately apparent: if users cannot refuse cookies without forfeiting access to a website entirely, they cannot be said to have made a “freely given” choice because the alternative (complete exclusion) constitutes unacceptable detriment.
The “specific” requirement mandates that consent must be given for one or more particular purposes that are clearly delineated in advance. Users cannot provide a single blanket consent covering multiple unrelated data processing activities; instead, the GDPR contemplates a granular consent structure where individuals grant or withhold permission for distinct processing purposes separately. For cookie walls, this requirement presents a significant problem because users typically face an all-or-nothing proposition—accept cookies wholesale or access nothing—with no opportunity to consent to specific types of processing (such as analytics) while declining others (such as behavioral advertising for third-party purposes).
The “informed” component of valid consent requires that individuals receive clear, comprehensive, and transparent information enabling them to understand the nature, scope, purposes, and consequences of the data processing to which they are consenting. Users must know what data will be collected, from whom, for what purposes, how long it will be retained, and what their rights are regarding that data. Cookie walls typically fail this requirement because they present users with a binary choice without adequately explaining the specific processing activities, purposes, and implications of accepting all cookies.
The “unambiguous” requirement demands a clear affirmative act—silence, inactivity, or pre-ticked boxes do not constitute valid consent. Users must affirmatively indicate their agreement through a statement or clear action, and there must be no ambiguity about whether they have actually consented. Cookie walls that provide only an “Accept All” button while offering no equivalent means to refuse cookies fail to create an unambiguous consent framework, as the absence of a clear refusal option suggests that non-consent is not genuinely possible.
The European Data Protection Board reinforced these principles in its updated consent guidelines issued in May 2020, clarifying that consent obtained through cookie walls does not satisfy the GDPR’s requirement for freely given consent. The EDPB explicitly stated that “consent given via cookie walls is not freely given and therefore does not constitute valid consent.” This determination reflects the Board’s recognition that the fundamental architecture of a cookie wall—denying access to a website unless cookies are accepted—creates a coercive environment incompatible with genuine freedom of choice.
Regulatory Landscape Across European Jurisdictions
While the GDPR establishes a baseline framework applicable across the European Union, national data protection authorities and courts have developed their own interpretations and enforcement approaches regarding cookie walls and paywalls, resulting in a complex patchwork of requirements that varies significantly by jurisdiction. Understanding these jurisdictional variations is essential for organizations operating across Europe, as compliance in one country does not automatically ensure compliance in another.
France: The CNIL’s Evolving Framework
France’s National Commission for Technology and Freedoms (CNIL) has taken a particularly significant role in shaping cookie compliance standards across Europe through its enforcement actions and guidance. Initially, the CNIL issued strict guidelines in July 2019 that effectively prohibited cookie walls altogether, reflecting concerns that these mechanisms violated the freedom of consent principle. However, in June 2020, the French highest administrative court partially revoked these guidelines, and the CNIL issued updated guidance in October 2020 that adopted a more nuanced stance.
The CNIL’s updated October 2020 guidelines no longer impose a blanket prohibition on cookie walls but instead recognize that their legality depends on satisfaction of strict conditions evaluated on a case-by-case basis. Specifically, the CNIL articulated that cookie walls can potentially be compliant with the GDPR only when users have access to a “real and fair alternative” to the walled content or services, implying that if users can access equivalent content or services without accepting cookies through some alternative mechanism, a cookie wall might be permissible. Additionally, the CNIL emphasized that any paywall price associated with rejecting cookies must be “reasonable,” though the authority has not provided precise mathematical guidance on what constitutes reasonableness. Furthermore, the CNIL noted that consent is valid only when individuals can “freely and validly exercise his choice and does not suffer severe disadvantages if the person withdraws his consent”.
The practical effect of this framework is to permit cookie paywalls in France under specified conditions but with substantial compliance burden on publishers to demonstrate that their pricing and alternatives meet fairness standards. This approach reflects recognition that publishers have legitimate revenue interests while maintaining emphasis on user choice and protecting the fundamental right to privacy from commodification.
United Kingdom: The ICO’s Conditional Approval
The United Kingdom’s Information Commissioner’s Office has taken a position more receptive to cookie walls than the EDPB’s blanket skepticism, though still imposing strict conditions. The ICO clarified that cookie walls are “inappropriate under certain circumstances” but are not categorically prohibited. Critically, the ICO distinguished between restricting access to a website’s “general content” and restricting access to “specific website content”.
According to the ICO’s interpretation, websites cannot deny users access to their “general content” on the condition that they accept non-essential cookies. However, access to specific, discrete pieces of content or services may be made conditional on acceptance of cookies if cookies are genuinely necessary for that particular content or service to function and the user explicitly requested access to that specific service. Notably, the ICO emphasized that “legitimate purpose” does not include third-party analytics services or online advertising networks, as users do not explicitly request data collection for these purposes.
This framework permits what might be called “functional cookie walls” for specific services while prohibiting general-purpose cookie walls that block access to a website’s primary content. For example, a publisher might legitimately require cookie acceptance for a personalized content recommendation engine, as users request personalization, but could not block access to general news articles based on cookie refusal.
Italy: Prohibition Without Exception
Italy’s Data Protection Authority adopted the most restrictive national position regarding cookie walls, issuing guidelines in 2021 that effectively prohibit cookie walls without qualification. Unlike France’s case-by-case assessment framework or the UK’s functional distinction, Italy simply declared cookie walls unlawful within its jurisdiction. This blanket prohibition reflects the Italian authority’s view that the fundamental premise of a cookie wall—conditioning access on cookie acceptance—is inherently incompatible with freely given consent regardless of alternative mechanisms or pricing structures.
Austria: Regulatory Permissibility with Judicial Skepticism
Austria’s Data Protection Authority initially adopted a permissive stance toward cookie walls, allowing them on a case-by-case basis, which created space for the Austrian newspaper Der Standard to implement a prominent “pay or okay” model when GDPR came into force in 2018. However, this initial regulatory permissiveness has been substantially undermined by subsequent court decisions. In 2023, Austria’s Data Protection Authority partially changed its position following NOYB complaints, determining that Der Standard’s “pay or okay” model violated GDPR requirements.
The Austrian Federal Administrative Court subsequently confirmed this decision in a 2025 ruling, holding that Der Standard did not obtain valid consent and violated GDPR requirements. The court emphasized that users must have the possibility to provide “granular consent”—that is, to consent to specific data processing purposes separately rather than facing a binary choice to accept all processing or pay. The court allowed an appeal to Austria’s Supreme Administrative Court, making it probable that the case will eventually reach the European Court of Justice. This progression demonstrates how initial regulatory permissiveness can evolve as courts and authorities deepen their analysis of consent principles and user autonomy.
Germany: Complexity and Tension
Germany’s Federal Commissioner for Data Protection and Freedom of Information enforces both EDPB guidelines and landmark CJEU rulings, maintaining a position that consent must be “active and free” and scrutinizing platforms to ensure users are not cornered into privacy trade-offs. The German Data Protection Conference has expressed concerns about “pay or okay” models specifically regarding the requirement for granular consent, suggesting skepticism about whether these models can satisfy GDPR requirements without substantial modifications.
The Consent or Pay Model: Specific Legal Challenges and EDPB Opinion 08/2024
The “consent or pay” model represents an evolution of the basic cookie wall concept, ostensibly offering a third choice by permitting users to pay a subscription fee to avoid tracking while retaining free access with behavioral advertising. However, this model has become the subject of intense regulatory scrutiny, culminating in the European Data Protection Board’s Opinion 08/2024, which provides comprehensive guidance on when—and when not—such models can comply with the GDPR.
The EDPB’s Opinion 08/2024, adopted on April 17, 2024, addresses the fundamental question of whether large online platforms implementing “consent or pay” models can obtain valid, freely given consent when confronting users with only two choices: consent to behavioral advertising or pay a fee. The EDPB’s conclusion is striking and consequential: in most cases, large online platforms will not be able to comply with the requirements for valid consent if they present users only with a binary choice between consenting to personal data processing for behavioral advertising or paying a fee.
This determination rests on the EDPB’s interpretation of “freely given consent” within the specific context of large online platforms that exercise considerable market power and provide services essential to users’ daily lives or work. The EDPB recognizes what it characterizes as a “clear imbalance of power” between dominant platforms like Meta and their users, arguing that when the only alternatives presented are consent to invasive behavioral advertising or payment of a fee, users face a constrained choice that undermines the freedom element of consent.
Critically, the EDPB recommends that platforms offering “consent or pay” models should provide a third option: a free alternative without behavioral advertising. This third option need not involve no advertising whatsoever; rather, it could involve contextual advertising (ads based on the content being viewed in that moment) or other forms of advertising that require minimal or no personal data processing. The EDPB articulates that such an alternative “must entail no processing for behavioral advertising purposes and may for example be a version of the service with a different form of advertising involving the processing of less (or no) personal data, e.g., contextual or general advertising or advertising based on topics the data subject selected”.
The Opinion also addresses the question of what constitutes an “appropriate fee” for paid alternatives without behavioral advertising. The EDPB declined to establish precise mathematical rules but emphasized that fees must not “inhibit data subjects from making a genuine choice in light of the requirements of valid consent” and must reflect principles of fairness and proportionality. The Opinion suggests that fees should correspond to the actual revenue loss incurred from not processing personal data for behavioral advertising, rather than being set at levels designed to maximize profit or effectively make the paid option economically inaccessible to ordinary users.
Furthermore, the EDPB stressed the importance of granularity in consent mechanisms, emphasizing that users should not be confronted with bundled consent requests covering multiple purposes but should instead be able to make separate choices for each processing purpose. The Opinion also addresses dark patterns, cautioning that users should not be subject to deceptive design patterns that steer them toward particular choices, and that the consent architecture itself must be transparent about the differences between available options.
Recent Enforcement Actions and Court Decisions
The regulatory landscape surrounding cookie walls and paywalls has been substantially shaped by high-profile enforcement actions and court decisions that have resulted in substantial penalties and legal determinations regarding compliance.
Meta’s €200 Million Fine Under the Digital Markets Act
In April 2025, the European Commission imposed a €200 million fine on Meta for violating Article 5(2) of the Digital Markets Act by implementing a “consent or pay” model for Facebook and Instagram that failed to provide users with a genuine choice regarding cross-service data combination. The Commission’s decision represents the first significant enforcement action under the DMA and demonstrates regulatory willingness to address consent mechanisms through competition law rather than exclusively through data protection frameworks.
The Commission’s reasoning focused on two key failures in Meta’s model: first, Meta did not present users with a “specific choice” of a less personalized but equivalent alternative, as both the paid option and the free with-ads option exhibited different conditions of access. Second, the Commission found that the configuration of Meta’s model did not ensure that users freely gave consent, citing “a clear imbalance of power between Meta and the end users” and noting the detriment that users would suffer by being forced to pay a subscription fee if they refused to consent.
This decision effectively imported GDPR consent principles into DMA enforcement, establishing that even if a “consent or pay” model were compliant under GDPR (which the Commission questioned), it could still violate the DMA if it failed to provide users with meaningful choice regarding data combination and processing. Meta was given 60 days from notification to cease the non-compliance, with potential periodic penalties if the company failed to comply.
TikTok’s €5 Million Fine for Manipulative Consent Flows
In January 2023, France’s CNIL imposed a €5 million fine on TikTok for manipulative cookie consent flows that failed to provide users with an equally easy means to refuse cookies as to accept them. The CNIL’s investigation, which examined TikTok’s website (though not its mobile app) from May 2020 through June 2022, found that while the company offered a button allowing immediate cookie acceptance, no equivalent mechanism existed to refuse cookies with equivalent ease.
Specifically, the CNIL determined that users required multiple clicks to refuse all cookies, while only a single click was necessary to accept all cookies. The watchdog characterized this asymmetry as discouraging users from refusing cookies and encouraging acceptance for the sake of convenience, thereby rendering consent not freely given. Additionally, the CNIL found that TikTok failed to sufficiently inform users about the purposes of cookies either in the initial banner or through the preference interface. The fine reflected the number of affected users in France, including minors, and the CNIL’s prior communications with TikTok about the requirement for easy refusal mechanisms.
Austrian Court Decision Against Der Standard’s Pay or Okay Model
The Austrian Federal Administrative Court confirmed in 2025 that newspaper Der Standard’s “pay or okay” model violated GDPR requirements, upholding a 2023 decision by Austria’s Data Protection Authority. Der Standard’s model, introduced when GDPR came into force in 2018, offered users the choice between paying approximately €9.90 monthly or consenting to comprehensive data processing for targeted advertising. The court determined that the newspaper violated GDPR by failing to obtain granular consent—that is, by refusing to allow users to consent to specific processing purposes separately.
Der Standard argued that granular consent was technically incompatible with its “pay or okay” model, as the business model required tracking and statistical data to sell advertising. However, the court rejected this argument, holding that technical or business model difficulties did not excuse compliance failures with GDPR’s consent requirements. The court allowed an appeal to Austria’s Supreme Administrative Court, making probable that the case would eventually reach the European Court of Justice, where it could provide critical guidance on the relationship between “consent or pay” models and granular consent requirements.
The significance of this decision extends beyond Der Standard itself: it demonstrates that even when regulators initially permit a mechanism, subsequent court scrutiny can reveal fundamental incompatibilities with GDPR principles that render the mechanism unlawful. The exceptionally high “consent” rate achieved through Der Standard’s model—over 99.9% of users consented to tracking rather than paying—provided empirical evidence that the binary choice did not constitute genuine user preference but rather resulted from financial pressure.
Economic Implications and User Behavior
The adoption of cookie walls and paywalls by publishers and platforms reflects genuine economic pressures created by the intersection of privacy regulations that restrict third-party cookies and advertising revenue models that depend on behavioral targeting. Understanding the economic dynamics and user behavioral responses to these mechanisms is essential for evaluating their sustainability and appropriateness.
Revenue Impact and Publisher Profitability
Empirical research on European publishers’ adoption of pay-or-tracking walls reveals significant economic motivations for implementing these mechanisms. A comprehensive FTC study examining top publishers in Austria, France, Germany, and Italy found that these publications use pay-or-tracking walls in diverse implementations, often bundling the pay option with ad-free access or additional content. The research uncovered a striking economic reality: the price for not being tracked exceeds the advertising revenue that publishers generate from users who consent to being tracked.
This pricing structure reflects publishers’ economic calculation that behavioral tracking, while requiring payment to opt out of, generates less revenue than the subscription fee charged for the “paid option without tracking”. Specifically, the study found that publishers profit substantially from pay-or-tracking walls, with some publishers observing revenue increases of 16.4 percent from implementing these mechanisms compared to traditional cookie consent banners. This revenue advantage results from most users choosing free access with tracking rather than either paying for privacy or refusing to use the service.
User Behavior and Consent Rates
Contrary to concerns that pay-or-tracking walls might alienate audiences, empirical evidence indicates that publishers’ traffic does not decline when implementing such mechanisms. Rather, the vast majority of users consent to being tracked to retain free access—only a small percentage choose to pay for the non-tracking option. This behavioral response aligns with principles of behavioral economics suggesting that users exhibit strong preference for free access and are willing to accept privacy incursions to avoid payment.
However, this user behavior pattern creates what privacy advocates characterize as a consent rate crisis: NOYB’s research indicates that when asked openly without economic coercion, only 1-7 percent of users express willingness to be tracked for online advertising. In contrast, Der Standard’s “pay or okay” model achieved consent rates exceeding 99.9 percent, suggesting that the binary choice architecture and financial pressure fundamentally altered user preferences away from their underlying privacy preferences. This dramatic discrepancy between stated preferences and revealed behavior under payment pressure provides evidence supporting regulatory skepticism that consent obtained through “pay or okay” models represents genuine, freely given agreement.
Pricing and Proportionality Concerns
The question of what constitutes a “reasonable” or “appropriate” price in the context of paywall models remains contentious. Data protection authorities have emphasized that prices must not be set at levels that make privacy economically inaccessible to ordinary users, essentially transforming privacy rights into luxury goods available only to the affluent. Privacy advocates, through organizations like NOYB, have argued that subscription fees should correspond to actual advertising revenue lost by not processing personal data, rather than being inflated to maximize profit.
The Austrian case involving Der Standard illustrates this concern acutely: the newspaper charged approximately €9.90 monthly (€96 annually) to access content without tracking, while its advertising revenue from tracked users amounted to only a few cents monthly. This pricing structure, with the paid privacy option costing many multiples of the actual lost advertising revenue, exemplifies the concern that publishers may use paywalls not to offer genuine alternative business models but rather to weaponize privacy as a profit center.
Practical Implementation Considerations and Compliance Challenges
Organizations seeking to implement cookie walls, paywalls, or “consent or pay” models face substantial practical challenges in attempting to satisfy the complex and evolving regulatory requirements across jurisdictions.
Dark Patterns and Deceptive Design
A pervasive practical problem affecting cookie consent mechanisms generally, and particularly acute in paywall implementations, involves the use of dark patterns—design choices deliberately crafted to manipulate users into making decisions they would not make with clear, honest presentation of options. Dark patterns in cookie consent include pre-ticked boxes that automatically opt users into non-essential cookies, asymmetric button design that makes “Accept All” prominent while hiding “Reject All” options, false urgency tactics using countdown timers to pressure quick decisions, and interface overloading that makes customized privacy settings so complex that users abandon attempts to exercise granular control.
European regulators have identified dark patterns as violations of GDPR Article 7 (which requires unambiguous consent through clear affirmative action) and Article 5 (which requires fairness in data processing). The Digital Services Act explicitly prohibits designs that impair users’ autonomous decision-making. Recent FTC enforcement in the United States has similarly targeted dark patterns as deceptive practices. Major companies including Google, Microsoft, Facebook, and Amazon have faced substantial fines related to dark patterns in their cookie consent mechanisms, establishing clear legal precedent that these practices incur significant penalties.
Granular Consent Requirements
A critical practical challenge involves implementing granular consent architecture—that is, allowing users to consent to specific data processing purposes separately rather than requiring bundled acceptance of all processing activities. GDPR Article 7 requires that consent be “specific,” implying that users must be able to consent to distinct processing purposes independently. The Austrian court’s decision against Der Standard emphasized that cookie paywalls cannot satisfy this requirement through binary choice architecture; instead, users must genuinely be able to select which processing purposes they will permit.
From a practical standpoint, implementing granular consent in paywall models presents significant technical and business challenges. Websites relying on behavioral tracking for targeted advertising functionality may argue that granular refusal of tracking cookies renders the advertising model inoperative. However, regulators and courts have consistently held that business model difficulties do not excuse GDPR non-compliance. Organizations implementing paywall models must therefore design technical systems capable of providing core service functionality even when users refuse behavioral tracking, or alternatively, must offer a genuinely equivalent alternative service tier that does not depend on behavioral tracking.
Establishing Genuinely Equivalent Alternatives
The EDPB Opinion 08/2024 and related regulatory guidance emphasize that “consent or pay” models should ideally offer a free alternative without behavioral advertising as the third option. Implementing such an alternative presents practical challenges: platforms must maintain separate service versions, allocate inventory resources appropriately, and develop alternative advertising models (typically contextual advertising) that generate sufficient revenue to remain viable.
For news publishers, this might involve offering a free tier with contextual advertising (ads selected based on article content rather than user tracking history) while maintaining a paid ad-free tier and a free tier with behavioral targeting. Social media platforms could theoretically offer contextual feeds or topic-based feeds without behavioral personalization as a free tier. However, the practical reality is that most platforms have optimized extensively for behavioral tracking and may lack systems to deliver contextually relevant experiences without such optimization.
Record Keeping and Auditing
Regardless of the specific consent mechanism implemented, the GDPR requires that organizations maintain detailed records of when and how users provided consent, what information was conveyed to them, and what choices they made. Consent Management Platforms (CMPs) have become standard tools for organizations attempting to meet these documentation requirements at scale. These platforms detect, scan, categorize, and automatically block cookies before user consent; create customizable consent banners and preference centers; generate privacy policies with automatic updates; maintain detailed consent logs; and produce audit-ready documentation of compliance practices.
Organizations implementing paywalls face additional record-keeping challenges: they must document not only whether users granted consent but also which version of the service they accessed (paid or free), whether they exercised choices regarding specific processing purposes, and whether they withdrew consent at any point. The failure to maintain adequate records during enforcement investigations has contributed to substantial fines in several cases, making comprehensive audit trails essential for any organization using paywalls or walls.
Alternative Approaches and the Evolution of Digital Advertising
The regulatory skepticism toward cookie walls and increasingly stringent requirements for “consent or pay” models has spurred publishers and platforms to explore alternative business models and technical approaches that balance monetization with evolving privacy expectations and regulations.
Contextual Advertising as an Alternative Revenue Model
Contextual advertising, which places advertisements based on webpage content being viewed in that moment rather than on accumulated user behavior history, has experienced resurgence as organizations seek advertising revenue models that require minimal personal data processing. Unlike behavioral targeting, contextual advertising does not depend on tracking cookies, unique identifiers, or complex audience profiling, making it substantially easier to implement in compliance with GDPR and other privacy regulations.
Research indicates that contextual advertising can achieve substantial effectiveness: studies show that consumers are more receptive to contextually relevant advertisements, with purchasing intent 63 percent higher when advertisements are contextually relevant compared to when they are behaviorally targeted. Contextual advertising also offers cost advantages because it requires fewer tools, less infrastructure, and simpler compliance structures compared to behavioral targeting systems. For publishers, adopting contextual advertising alongside first-party data strategies and privacy-compliant audience segments can maintain revenue while reducing regulatory risk.
First-Party Data Strategies and Customer Data Platforms
Publishers and platforms are increasingly prioritizing first-party data—information directly collected from users through website interactions, account creation, surveys, and explicit user preferences—as a foundation for targeted advertising and personalization that complies with privacy regulations. Unlike third-party cookies, which are collected through tracking across multiple websites, first-party data is collected directly by and owned by the organization, giving publishers greater control over how it is used and enabling more transparent disclosure to users.
Customer Data Platforms (CDPs) have emerged as critical infrastructure for collecting, organizing, and activating first-party data at scale. These platforms integrate data from multiple sources including website behavior, customer service interactions, email engagement, offline transactions, and explicitly shared preferences to create comprehensive customer profiles enabling personalization and segmentation. CDPs support compliance with privacy regulations because the data they organize comes directly from customers with their knowledge and, ideally, their explicit consent.
Organizations implementing first-party data strategies must establish transparent data collection practices and obtain valid consent under GDPR principles for processing personal data. When properly implemented, first-party data offers several advantages: it tends to be more accurate than third-party data because it comes directly from customers; it enables deeper behavioral pattern prediction because it combines multiple interaction types; it provides greater availability and control compared to purchased third-party data; and it generates better customer trust by enabling transparency about data usage.
Privacy Sandbox and Emerging Technical Alternatives
Google’s Privacy Sandbox initiative, including technologies like the Topics API, has been proposed as a mechanism to enable interest-based advertising without requiring third-party tracking cookies. The Topics API works by having browsers (rather than third parties) identify topics of user interest based on websites visited, then sharing only these high-level topics with advertisers rather than sharing detailed browsing history. This approach theoretically provides an intermediate point between pure behavioral targeting (which involves detailed tracking) and contextual advertising (which involves no user tracking).
However, in October 2025, Google announced significant changes to its Privacy Sandbox strategy, retiring several proposed technologies including the Attribution Reporting API, On-Device Personalization, Topics, and Protected Audience. This decision reflected ecosystem feedback about expected value and low adoption rates for these technologies. Google indicated it would focus instead on CHIPS (which improves cookie privacy and security), FedCM (which streamlines identity flows), and collaborative work on an interoperable attribution standard through the W3C.
The Privacy Sandbox’s evolution demonstrates that technical solutions to enable privacy-preserving advertising remain unsettled and contested. Rather than waiting for these technologies to mature, publishers are increasingly investing in first-party data strategies and identity solutions that provide more immediate compliance with existing regulations.
Consent Management Platforms and Compliance Infrastructure
The complexity of implementing compliant cookie walls, paywalls, and broader consent management systems has generated substantial demand for specialized software solutions known as Consent Management Platforms.
CMPs typically provide several core functions: they detect and categorize all tracking technologies present on a website; they create customizable consent banners and preference centers that communicate cookie purposes clearly; they automatically block cookies until users provide consent; they store detailed records of consent decisions; and they generate audit-ready documentation and compliance reports. Advanced CMPs increasingly incorporate analytics dashboards enabling organizations to track consent rates by cookie category, geographic region, and over time, supporting continuous optimization of consent architecture.
Organizations evaluating CMPs should prioritize several criteria: the platform must support granular consent architecture with separate categories for different processing purposes; it must clearly explain cookie purposes in plain language avoiding technical jargon; it must allow users to change preferences easily both in the initial banner and through persistent preference centers; it must maintain comprehensive audit trails documenting when and how consent was obtained; it must support multi-jurisdictional compliance, recognizing that different regions have different requirements; and it should provide decision-support tools helping organizations identify and eliminate dark patterns.
Future Regulatory Evolution and Strategic Considerations
The regulatory landscape surrounding cookies, tracking, and consent continues to evolve rapidly, with several emerging trends likely to shape organizational compliance obligations and strategic decisions.
Expanding Scope of Tracking Technologies Subject to Consent Requirements
While “cookies” remain the most visible consent requirement, regulatory authorities have been steadily expanding the definition of tracking technologies subject to Article 5(3) of the ePrivacy Directive and GDPR requirements. The European Data Protection Board’s draft guidelines on the technical scope of Article 5(3) confirmed that tracking pixels, tracking URLs, and similar identifiers all fall within the consent requirement despite not being traditional cookies. This expanding scope means that organizations must carefully audit all tracking technologies present on their websites and ensure that each satisfies consent requirements.
Increasing Coordination Among Regulators
Recent enforcement actions involving coordinated action by multiple regulators and supervisory authorities suggest that regulatory coordination is intensifying. The European Data Protection Board’s Opinion 08/2024 was issued in response to a request from data protection authorities in the Netherlands, Norway, and Hamburg, reflecting growing coordination among national authorities to develop common guidance on emerging issues. This coordination tends to drive toward stricter, more harmonized standards rather than toward permissiveness, as authorities share enforcement intelligence and successful strategies.
Dark Pattern Enforcement
Enforcement action targeting dark patterns in cookie consent has intensified significantly, with regulators and courts treating manipulative interface design as violations of core GDPR and Digital Services Act principles. This enforcement trend will likely continue and expand, driving organizations to invest in user-centric interface design prioritizing genuine choice and transparency over conversion optimization.
State Privacy Laws in the United States
While this analysis has emphasized European regulations, the United States is developing fragmented state-level privacy laws that increasingly incorporate cookie consent requirements similar to European standards. The California Consumer Privacy Act (CCPA) and California Privacy Rights Act (CPRA) require disclosure of cookie usage and provide consumers with rights to opt out of data collection and the sale or sharing of personal data. Additional state laws including Virginia’s Virginia Consumer Data Protection Act and Connecticut’s Connecticut Data Privacy Act contain similar provisions.
Organizations operating in the United States face a particular compliance challenge: unlike Europe’s relatively unified GDPR framework, the United States presents a fragmented landscape where organizations must comply with different requirements across multiple states. This fragmentation creates incentives for organizations to adopt strong baseline practices that exceed minimum requirements in any single state, as tailoring systems to specific state requirements becomes economically infeasible.
The Final Analysis: Legal and Practical Realities of Cookie Walls and Paywalls
Cookie walls—mechanisms that condition website access on cookie acceptance without offering a genuine refusal option—have been determined to be non-compliant with the GDPR across most jurisdictions despite initial uncertainty about their legality. The European Data Protection Board’s May 2020 guidance established that consent obtained through cookie walls does not satisfy the requirement for freely given consent, as users face unacceptable detriment (complete exclusion) if they refuse.
“Consent or pay” models occupy more complex legal terrain. These mechanisms offer users a theoretically third option—payment to avoid tracking—rather than presenting a binary choice between surveillance and exclusion. However, the European Data Protection Board’s Opinion 08/2024 establishes strict requirements for such models to comply with GDPR. In most cases, large online platforms deploying “consent or pay” models will fail to meet consent requirements unless they offer a genuinely equivalent free alternative without behavioral advertising, such as a version of the service supported by contextual advertising.
Recent enforcement actions—including Meta’s €200 million fine under the Digital Markets Act, the Austrian court’s decision against Der Standard, and TikTok’s €5 million fine for manipulative consent flows—demonstrate regulatory and judicial commitment to enforcing these principles and imposing substantial penalties for violations. The empirical evidence that users achieve consent rates exceeding 99 percent when forced to choose between payment and tracking, despite expressing only 1-7 percent willingness to be tracked when given free choice, provides persuasive evidence that such models violate the “freely given” principle.
For organizations considering cookie walls, paywalls, or “consent or pay” models, the following strategic recommendations emerge from this analysis:
Avoid pure cookie walls altogether, as these mechanisms are non-compliant with GDPR across virtually all jurisdictions and subject organizations to significant regulatory enforcement risk and reputational damage. If organizational business models depend on behavioral tracking for revenue, explore alternative mechanisms rather than implementing purely prohibitive cookie walls.
If implementing a “consent or pay” model, design the framework to comply with EDPB Opinion 08/2024 by offering a genuinely equivalent free alternative without behavioral advertising. This third option need not involve zero advertising but should minimize personal data processing through contextual or topic-based advertising rather than behavioral tracking. The additional effort to develop and maintain this third alternative is justified by the substantial legal risk and enforcement costs associated with “consent or pay” models that lack such alternatives.
Prioritize first-party data strategies and contextual advertising as fundamental business model components rather than relying exclusively on third-party behavioral tracking. These alternatives offer both regulatory compliance and often superior engagement metrics compared to invasive tracking, particularly as consumer concern about privacy intensifies.
Implement granular consent architecture enabling users to consent to specific processing purposes separately rather than forcing bundled acceptance of all tracking purposes. The additional technical complexity is justified by legal requirements under GDPR Article 7 and reflected in regulatory guidance.
Deploy robust Consent Management Platforms that maintain comprehensive audit trails, detect dark patterns, and provide evidence of compliance during regulatory investigations. The investment in CMP infrastructure is justified by the substantial penalties associated with consent violations and the increasing sophistication of regulatory enforcement.
Monitor evolving regulatory developments closely, particularly regarding expanding definitions of tracking technologies subject to consent requirements, intensifying coordination among regulators, and state privacy laws in the United States. Organizations should establish compliance review cycles ensuring that business practices and technical implementations remain aligned with evolving regulatory standards.
The fundamental principle underlying all these recommendations is that user consent genuinely obtained—understood as freely given, specific, informed, and unambiguous—is the essential foundation for sustainable digital business models in the emerging privacy-centric regulatory environment. Organizations that prioritize genuine consent, transparency, and user autonomy will be positioned to navigate regulatory evolution successfully, build consumer trust, and compete effectively in markets increasingly valuing privacy as a competitive factor rather than an impediment to revenue generation.
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