Consent or Pay: What Publishers Need to Know

Tim Cross-Kovoor 27 January, 2025 

The UK’s Information Commissioner’s Office (ICO), the national data regulator, last week gave the go ahead for publishers to use ‘consent or pay’ business models, whereby they ask audiences to either consent to use of their personal data to power personalised advertising, or else pay to access content and avoid personalised advertising.

While several UK publishers started using consent or pay last year, its legal status had previously been unclear. Some privacy advocates claimed that publishers using the model weren’t collecting freely given consent, as required by the UK’s data laws. Under UK law, businesses can’t bundle consent to personal data collection as a condition of accessing a product or service, unless that data collection is crucial for providing that product or service. The key question therefore was whether providing a paid option, with no personal data collection involved, would be sufficient to comply with the law.

After consulting the industry and fielding opinions, the ICO has released guidance stating that consent or pay models can be valid under UK law – though there are a number of criteria which publishers need to meet to ensure they’re compliant.

Respect the power balance

The first thing to note is that — fairly obviously — wider rules around consent collection still need to be adhered to. Under the UK’s GDPR data law, consent must be “freely given, specific, informed and unambiguous”. The ICO’s new guidance ensures that consent is freely given within consent or pay models, but it’s crucial that publishers still adhere to all the other facets of valid consent.

With that in mind, the first thing publishers need to consider is whether there’s a power imbalance between themselves and their users. Essentially, the question is whether consumers are likely to be unfairly punished if they’re unable to use a particular good or service, and therefore pushed to consent to data processing.

Examples where a power balance might exist include cases where users might be dependent on a particular product or service, where it’s difficult for users to move to an alternative product, where certain users might be vulnerable (i.e due to age, disability, or financial situation), or where a company has a dominant position under competition law.

Where there is a clear power imbalance, the ICO doesn’t completely rule out consent or pay. But the equation does become more complicated. The cost of paying to avoid personalised advertising might be unaffordable for some users, meaning they either have to consent or else stop using the product. In this case, the ICO says that consent wouldn’t be freely given, and so would be invalid.

This clause would likely apply to social networks, or other platforms which users might be dependent on. But for news publishers, it’s likely not a worry since news publishing is a competitive market, with plenty of alternatives available for users.

The price is right (for consumers)

The second major aspect which publishers need to be mindful of is that the fee charged for the paid option must be appropriate. If a news publisher charged £1000 per month for users to get rid of personalised ads, for example, that wouldn’t be a realistic alternative. Users would essentially be forced to accept personalised ads or not use the product.

While there is no hard and fast rule for calculating an appropriate fee, the ICO is explicit that the fee must relate to the value users place on targeting-free advertising, rather than the value of data to the company itself.

This is potentially problematic for publishers. While we still see a range of opinions across the industry, many publishers maintain that if they’re not able to collect and process personal data for personalised advertising, they take a financial hit. Consent or pay is seen as a way of balancing this cost.

But it’s the value to consumers which is important, which the ICO says could be gauged through research and monitoring of a businesses’ users — both stated and inferred.

So a publisher might calculate that it takes an average revenue hit of £1 per month per user if it’s not able to collect and use their personal data. Logically, it would want to charge that amount for a subscription which circumvents personalised targeting. But if research and monitoring found that their average user only places a value of around 50p per month on avoiding personalised ads, that would be deemed the appropriate fee — not £1.

The ICO also advises that companies should be careful about bundling this appropriate fee into a broader subscription package. For example, a publisher might give users two options:

  • Provide consent, and get access to the website
  • Pay £5.99 per month for a subscription, with access to exclusive content and features

In that case, it’s likely that users would either be forced to pay a fee well in excess of the value they place on avoiding data collection, or not accessing the website at all — which wouldn’t be freely given consent.

In essence, the ICO’s guidance suggests that the safest option for publishers using consent or pay is to make sure the difference in pricing between the two cheapest options is equal to the value their users place on avoiding personalised ads. So if a publisher calculated that value as 50p, they might:

  • Offer a £5.99 subscription fee with consent for personalised ads, and a £6.49 subscription fee which removes personalised ads
  • Offer free access with consent, a 50p subscription to avoid personalised ads
  • Offer free access with consent, a 50p subscription to avoid personalised ads, and a £5.99 premium subscription with extra content and no personalised ads

Equivalent exchange

The final big consideration relates to this previous point. Consent or pay models should ensure that consumers should be offered broadly the same core product or service regardless of whether they pay or consent.

As just described, businesses would unlikely be able to bundle extra content into their paid offering alongside the removal of personalised ads, since the price of this offering would likely price some consumers out.

At the same time, businesses can’t coax users into consenting by making the paid alternative significantly inferior. A news website for example couldn’t offer free unlimited access to consent for consenting visitors, and one article per day for users who pay to avoid personalised ads.

The two options don’t have to offer exactly the same service, and the ICO says companies are allowed to incentivise their customers to consent. But they must ensure that the core product or service is equivalent, of equivalent quality, and that the additional benefits don’t change the nature of the core service.

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2025-01-27T14:05:24+01:00

About the Author:

Tim Cross is Assistant Editor at VideoWeek.
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