6 ms·

It forces you to accept cookies that aren't necessary for the functioning of the site to view the content. According to the GDPR, you can't do that.

arcbyte 8y ago
I don't know where this misconception comes from. Consent is totally different from contract - and both are part of reasons under the GDPR to use private data. True, consent requires necessity, but contract is wide open. When you click accept you aren't consenting, you are (theoretically) forming a contract, not consenting.
- yorwba 8y ago
  > you are (theoretically) forming a contract, not consenting. How is forming a contract different from consenting? Do you mean to imply that a contract can be formed without consenting to the contract terms? The GDPR does allow processing if "[it] is necessary for the performance of a contract to which the data subject is party or in order to take steps at the request of the data subject prior to entering into a contract" ( https://gdpr-info.eu/art-6-gdpr/ https://gdpr-info.eu/art-6-gdpr/ ), but if you want to argue that tracking is necessary to fulfill the contractual obligation to display personalized ads, then first you'd need to get consent for that contract. How to get that consent is outlined in https://gdpr-info.eu/art-7-gdpr/ https://gdpr-info.eu/art-7-gdpr/ , which says e.g.: "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." So is the contract with TechCrunch about reading articles or about looking at ads? And is the reading of articles conditional on the ads?
  - arcbyte 8y ago
    GDPR doesn't change contract law - they're orthogonal. It is true that in the everyday meaning of the word "consent", you would "consent" to a contract, but that is not at all how it is being used in the GDPR - the consent is to the one-sided, without consideration use of your private information. It has nothing to do with consenting to anything else, whether the formation of a contract or the shaving of your dog. While I applaud you going to the source, your reference: "How to get that consent is outlined in https://gdpr-info.eu/art-7-gdpr/" https://gdpr-info.eu/art-7-gdpr/" does not mean what you think it means. It is simply a specific callout to emphasize the "freely given" aspect of consent (and NOT contracts) and remind enforcers that refusing to perform or taking some out from performing a contract should be considered undue pressure to get consent and therefore not "freely given". For instance, an extreme example would be if, after you ordered and paid for a pizza, and after I agreed to make and deliver you that pizza, I subsequently threaten to breach that pizza delivery contract if you don't "consent" to give me a complete list of movies you've watched this week. ALthough we do have a contract, we're not forming a new movie-history contract because I'm not offering anything for it or agreeing to do anything. I'm just using that pre-existing contractual relationship between us to threaten you into something that you may not want to do. They're completely separate concepts. Note the phrase "inter alia" which means "among other things", which is a signal from the authors that this is not the only consideration on "freely giving" consent. It has nothing to do with consenting to form a contract. Note also the word "performance" as it relates to a contract, which is completely distinct from "formation" of a contract. Furthermore, you've (theoretically) been forming contracts with these websites every time you visit them and accept their ToS and privacy policies and whatever else you click "OK" on - just go read them. They restrict you from many things that you could possibly do (reverse engineering, automated scraping, etc) in consideration for serving you up the content. GDPR is just another line item to add into that list for you to accept in the (theoretical) contract. Lastly, I keep saying "theoretical" because at least in the US, I'm not aware of a direct case on the topic of whether website ToS are actually enforceable. There's a click-wrap case that is close, but other than that....
- deleted 8y ago
  [deleted]
johnchristopher 8y ago
Again, Techcrunch doesn't force you to accept anything. They aren't obliged to show you any content they don't want to show you. Now they propose you accept tracking by the means of cookies in order to access their content and the purpose of those cookies is clearly stated: advertising. It's also clearly stated who has access to this data. It's up to you to decide whether it's worthy or not. It'd be different if there was a cookie they didn't warn you about and isn't needed to view the content. > It forces you to accept cookies that aren't necessary for the functioning of the site to view the content. So, no. That's not what's happening here.
- Terretta 8y ago
  The law pretty much rules out advertising as a valid reason, and that they can't discriminate on showing content based on opting out of the non-valid reasons (like ads).
  - umvi 8y ago
    Excuse my ignorance, but I'm interpreting this to mean that under GDPR users should be able to opt out of cookies and still view the content? That doesn't seem right. Shouldn't I, the creator, be able to say "consent to having cookies or don't use my site?"
    - toomuchtodo 8y ago
      That's a moral argument, not a legal argument. GDPR codifies through law that you are unable to, legally.
      - umvi 8y ago
        That makes about as much sense (to me) as: "Fill out this survey and you can have a candy bar" "Nope, I won't fill out the survey but I'll still take the candy bar"
        Terretta 8y ago

arcbyte 8y ago

I don't know where this misconception comes from. Consent is totally different from contract - and both are part of reasons under the GDPR to use private data. True, consent requires necessity, but contract is wide open. When you click accept you aren't consenting, you are (theoretically) forming a contract, not consenting.

yorwba 8y ago
> you are (theoretically) forming a contract, not consenting. How is forming a contract different from consenting? Do you mean to imply that a contract can be formed without consenting to the contract terms? The GDPR does allow processing if "[it] is necessary for the performance of a contract to which the data subject is party or in order to take steps at the request of the data subject prior to entering into a contract" ( https://gdpr-info.eu/art-6-gdpr/ https://gdpr-info.eu/art-6-gdpr/ ), but if you want to argue that tracking is necessary to fulfill the contractual obligation to display personalized ads, then first you'd need to get consent for that contract. How to get that consent is outlined in https://gdpr-info.eu/art-7-gdpr/ https://gdpr-info.eu/art-7-gdpr/ , which says e.g.: "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." So is the contract with TechCrunch about reading articles or about looking at ads? And is the reading of articles conditional on the ads?
- arcbyte 8y ago
  GDPR doesn't change contract law - they're orthogonal. It is true that in the everyday meaning of the word "consent", you would "consent" to a contract, but that is not at all how it is being used in the GDPR - the consent is to the one-sided, without consideration use of your private information. It has nothing to do with consenting to anything else, whether the formation of a contract or the shaving of your dog. While I applaud you going to the source, your reference: "How to get that consent is outlined in https://gdpr-info.eu/art-7-gdpr/" https://gdpr-info.eu/art-7-gdpr/" does not mean what you think it means. It is simply a specific callout to emphasize the "freely given" aspect of consent (and NOT contracts) and remind enforcers that refusing to perform or taking some out from performing a contract should be considered undue pressure to get consent and therefore not "freely given". For instance, an extreme example would be if, after you ordered and paid for a pizza, and after I agreed to make and deliver you that pizza, I subsequently threaten to breach that pizza delivery contract if you don't "consent" to give me a complete list of movies you've watched this week. ALthough we do have a contract, we're not forming a new movie-history contract because I'm not offering anything for it or agreeing to do anything. I'm just using that pre-existing contractual relationship between us to threaten you into something that you may not want to do. They're completely separate concepts. Note the phrase "inter alia" which means "among other things", which is a signal from the authors that this is not the only consideration on "freely giving" consent. It has nothing to do with consenting to form a contract. Note also the word "performance" as it relates to a contract, which is completely distinct from "formation" of a contract. Furthermore, you've (theoretically) been forming contracts with these websites every time you visit them and accept their ToS and privacy policies and whatever else you click "OK" on - just go read them. They restrict you from many things that you could possibly do (reverse engineering, automated scraping, etc) in consideration for serving you up the content. GDPR is just another line item to add into that list for you to accept in the (theoretical) contract. Lastly, I keep saying "theoretical" because at least in the US, I'm not aware of a direct case on the topic of whether website ToS are actually enforceable. There's a click-wrap case that is close, but other than that....
deleted 8y ago
[deleted]

johnchristopher 8y ago

Again, Techcrunch doesn't force you to accept anything. They aren't obliged to show you any content they don't want to show you. Now they propose you accept tracking by the means of cookies in order to access their content and the purpose of those cookies is clearly stated: advertising. It's also clearly stated who has access to this data. It's up to you to decide whether it's worthy or not. It'd be different if there was a cookie they didn't warn you about and isn't needed to view the content. > It forces you to accept cookies that aren't necessary for the functioning of the site to view the content. So, no. That's not what's happening here.

Terretta 8y ago
The law pretty much rules out advertising as a valid reason, and that they can't discriminate on showing content based on opting out of the non-valid reasons (like ads).
- umvi 8y ago
  Excuse my ignorance, but I'm interpreting this to mean that under GDPR users should be able to opt out of cookies and still view the content? That doesn't seem right. Shouldn't I, the creator, be able to say "consent to having cookies or don't use my site?"
  - toomuchtodo 8y ago
    That's a moral argument, not a legal argument. GDPR codifies through law that you are unable to, legally.
    - umvi 8y ago
      That makes about as much sense (to me) as: "Fill out this survey and you can have a candy bar" "Nope, I won't fill out the survey but I'll still take the candy bar"
      - Terretta 8y ago