Abstract

This contribution investigates the legality of the pay-or-consent model, also known as the pay-or-okay model, in which users must either pay a subscription fee or consent to potentially invasive personal data processing to access an online service, within the framework of South African law. With reference to Meta Platforms’ 2023 implementation of this model on Facebook, this contribution explores whether such practices comply with the Protection of Personal Information Act 4 of 2013 (“POPIA”), the Consumer Protection Act 68 of 2008 (“CPA”), South African common law and competition law. Drawing comparative insights from European Union law, including the General Data Protection Regulation (“GDPR”), the Court of Justice of the European Union (“CJEU”)’s decision in Meta Platforms v Bundeskartellamt, and the European Data Protection Board’s Opinion 08/2024 on Consent in the Context of Consent or Pay Models Implemented by Large Online Platforms, the contribution examines how power asymmetries, lack of meaningful alternatives, and bundled consent undermine the voluntariness of consent under both data protection and consumer frameworks. The analysis unfolds across four key dimensions: (1) the data protection requirement that consent must be voluntary, granular, and informed; (2) the commodification of personal data and potential abuse of dominance under South African competition law; (3) the failure of South African contract law and public policy doctrine to sufficiently address structural coercion and substantive unfairness in digital contracts; and (4) the CPA’s role in regulating procedural and substantive unfairness in platform-consumer relationships. The article argues that existing South African law lacks the doctrinal clarity and institutional capacity to regulate consent-based digital business models effectively. It concludes that absent legislative reform or purposive judicial intervention, the pay-or-consent model risks entrenching digital inequality and commodifying privacy. The article calls for a normative shift in South African legal doctrine, particularly in contract, consumer, and data protection law, to prioritise substantive fairness and user autonomy in the face of increasing platform dominance.