The rise of "consent or payment" models represents a crucial juncture in the relationship between individual freedom and digital market logic. Behind the apparently neutral formula of "consent to the use of your data or pay not to be profiled" lies a deep tension: can data protection become a negotiable commodity?

The legal analysis of the matter, in light of Regulation (EU) 2016/679, leads to a negative answer. Consent, to be valid, must be free, informed, specific, and unambiguous.

Freedom presupposes the real possibility of choice, but when the alternative to consent is exclusion from a dominant service – read: a social network, a communication platform, a search engine – such freedom loses its meaning. The economic consideration is not a "choice", but a barrier that shifts the right to data protection from the plane of fundamental rights to that of purchasing power.

The logic of "pay or consent" is based on the assumption that personal data can serve as a medium of exchange. It is an economist approach that betrays the spirit of the GDPR, which does not recognise data as having market value, but protects it as an extension of the person. Transforming the renunciation of privacy into a transaction means reducing digital identity to a commodity, subordinating dignity to profit.

There is also a problem of structural asymmetry between the user and the platform. Large online platforms hold such market power as to render any user self-determination illusory. Adherence to data processing often occurs under conditions of functional dependency – for social, professional, or relational reasons – that create a power imbalance incompatible with the notion of free consent. This argument also finds resonance in European case law, which recognises the need to offer genuinely equivalent alternatives in order to avoid the conditionality of access to the service.

A possible path to equilibrium lies precisely in the concept of an "equivalent alternative": a version of the service free of behavioural advertising, accessible free of charge or through a less invasive model of data processing. Only in this way can consent regain its authenticity, ceasing to be a forced choice and returning to being an expression of informed will.

The imposition of a payment, on the contrary, risks introducing economic discrimination in the enjoyment of fundamental rights: those who can pay escape profiling, those who cannot remain trapped by it. This is a drift that the logic of the GDPR, based on proportionality, minimisation, and fairness, seeks to prevent. The accountability principle requires data controllers to demonstrate not only the lawfulness of consent, but also its substantial fairness.

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"Pay or consent" models do not represent a true crossroads, but a false alternative. Freedom of choice cannot be monetised, and consent extracted under economic threat is, in substance, vitiated consent. The challenge for digital platforms, and for the legislators who regulate them, consists in reconciling economic sustainability and the protection of the individual without transforming privacy into a paid privilege. Only in this way will Europe be able to remain faithful to its own vision: a digital market that is founded on rights, not one that puts them up for sale.

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