Can a nightclub force app downloads under the guise of consent or pay?

Now for a different “Consent or Pay” anecdote (not mine though!): a night club tells those trying to get in that they need to download an app and scan a code after registering. It later turns out the alternative was to pay 10�.

Is this “Pay or OK” in relation to non-digital services?

The context raises doubts as to whether the practice is likely to give rise to freely given consent, as the target audience includes not only people who are sober but also people who might no longer be – which in turn raises questions as to their legal ability to make certain decisions.

But what about you, the privacy-minded person who is sober?

True, when you are standing outside in the cold or in the rain (apparently it was both in this particular instance), you might not think that you have many alternatives. Peer pressure (like the “network effects” to which the European Data Protection Board likes to refer) might make you stay if you are the only one among your friends who has concerns. But you remain free to say “good-bye” to the night club and to convince your friends to follow you. If they don’t follow you, you can call it a night and see them again the next day – or even go make new friends somewhere else.

If you stay, what will you do? The 10� fee for one evening (ahem, more than what certain digital services ask for a much longer period of time) might be worth it to you given the right circumstances. It might reflect supply and demand (or will you claim that it should be 2� instead, and on what basis? Who are you to decide?). The option to “pay with your data” doesn’t mean that those choosing to pay 10� are paying for data protection, either, because the night club has to comply with the law anyway. [Whether it does in this particular case is not entirely clear, but I do have my suspicions.]

It’s an interesting situation, really. I know I’m going to have a really hard time convincing anyone that the person who went to that night club *wasn’t* me, but I will protect the privacy of the person who shared this anecdote with me!

I think this scenario illustrates very well that:
(i) “pay or OK” isn’t a business model only for digital services;
(ii) it’s easy to criticise anyone who puts in place such a business model, but there are typically good answers to most such criticisms (though digital service providers are less frequently confronted with the question of whether a person who has had a bit too much to drink is still able to give informed and freely given consent)
(iii) GDPR hot topics are not always theoretical ones – some are very important to people outside of our bubble.

Facing questions regarding Pay or OK, or personalised advertising? Reach out, or read the following:
– a post in which I explained some of the key questions being looked at today: https://lnkd.in/ewJT_rny
– my critical analysis of the “Consent or Pay” Opinion of the EDPB: https://lnkd.in/eddQ4yW8