IAB response to the ICO’s ‘consent or pay’ call for views

In March, the ICO responded to questions about its interpretation of the law from IAB UK and AOP publisher members who were considering changes to their cookie consent approaches. At the same time, the ICO launched a call for views on its emerging thinking on ‘consent or pay’ models for accessing online content and services to inform its future guidance. 

IAB UK has submitted views to the ICO on behalf of our members. As we note in our response, the complexities of ‘consent or pay’ require balancing consumer choice, revenue protection, and compliance. We have set out our support for an approach that:  

• Reflects the value exchange that consumers benefit from by having free ad-supported access to commercial online content/services. IAB UK’s ‘The Digital Dividend’ report showed that the actual cost saving for UK households of not having to pay for ad-funded digital services stands at £580 a year and in the cost-of-living crisis, 70% of UK adults say that it’s important to them that online services are free1  

• Reflects the cost of producing and providing those services 

• Supports the offer of a fair choice to consumers, which appropriately balances privacy/data considerations with other rights 

We agree with the ICO that, in principle, data protection law does not prohibit business models that involve ‘consent or pay’ and consent can be valid when it is obtained within a framework of choices that include ad-supported or paid-for options. However, we do not believe that the existence of paid-for options will always pose a risk to the validity of consent, as suggested by the ICO’s emerging thinking. Rather, the risk should be assessed objectively, on a case-by-case basis and the ICO’s guidance needs to reflect that. Given the considerations involved and their interaction with competition and consumer protection law, any new guidance will require input from the CMA.

Our response emphasises commercial providers’ right to choose their business models and service offerings, so long as they do so in a lawful way, and we have urged the ICO to avoid suggesting that consumers are entitled to access commercial content and services for free, ad-supported or not. Similarly, we have said that the ICO needs to take care in its narrative and future guidance on ‘consent or pay’ to acknowledge that consumers are paying for the content or service, not for data protection and privacy rights; these apply irrespective of the access model they choose.

The ICO says that responses to its call for views will influence the development of its final regulatory positions ‘which will be reflected in the ICO’s upcoming guidance update on cookies and similar technologies’. This is not expected until after the DPDI Bill has received Royal Assent later this year.