Case studies
We have produced these case studies to show how you can approach your assessment of your “consent or pay” model. These are for illustrative purposes and are not intended to be a definitive statement on any particular type of organisation.
Case study one
Organisation A operates a popular social networking platform. They assess their core service to be connecting people with friends, family and information about communities online. Organisation A benefits from direct network effects, meaning that the value of the network on the platform to each user is higher because of the number of other users on the platform. There is no meaningful alternative service that offers all of the fundamentally core aspects of the platform service at the same scale, ie engaging with friends, family and accessing community information. If users leave this platform to access a different organisation’s service, they are likely to be unable to communicate with a comparable network of users.
Noting that people have limited alternatives to using their service, and that users face significant barriers to switching, Organisation A concludes that their market position could have the effect of creating a power imbalance with their users. Organisation A notes that if they introduced a “consent or pay” model which offered users only the option to consent to personalised advertising, or to pay to avoid personalised advertising, they may struggle to demonstrate that their users’ consent is freely given. This is because many of their users appear to rely on the service and may experience an unfair penalty if they can no longer access it or have to pay to access it.
In order to ensure that their users have genuine freedom of choice, Organisation A decides to introduce an additional option which allows users to access the service for free with contextual ads. Organisation A notes that the alternative option should offer an equivalent core service. They therefore ensure that their alternative option allows users to connect with family and friends, to post information and see content posted by them and to access community information.
However, Organisation A decides that the free option with contextual ads will not include certain features that are in the consent to personalised ads option. These include additional filters for photo editing and the option for users to select an avatar for their profile. As the omission of these features does not prevent users from using the core service, Organisation A concludes that taking out these features from the contextual ads option will not amount to an unfair penalty for those who refuse consent to personalised advertising. Organisation A keeps these additional features under review over time to ensure that the equivalence of the core service is maintained across all available options.
Organisation A also ensures that the price of their subscription option is an appropriate fee for removing personalised ads. They also check that the way they present their offer is compliant with privacy by design principles. They carry out their assessment in line with the ICO’s guidance and in a way which reflects the nature and size of the organisation.
Case study two
Organisation B operates a news media website. They assess their core service to be the provision of news content online.
Organisation B assesses their market position and notes that there are several other platforms which offer the same core service and that users can use an alternative service to access similar content if they wish. Organisation B concludes that their market position is unlikely to have the effect of creating a power imbalance with their users.
Organisation B wants to offer their users premium content such as puzzles, op-eds and lifestyle supplements, as well as offering their core service. They consider whether they can offer users the choice to consent to personalised advertising to access the core service for free or to pay a subscription fee to access a premium service (including core plus premium content) without personalised advertising. They assess whether this choice will meet the equivalence factor and the appropriate fee factor. They determine that, in order to offer the premium content, they will have to charge a fee which is higher than what their evidence indicates would be an appropriate fee for removing personalised ads.
Organisation B notes that this offer does not meet the ICO’s expectations for the appropriate fee factor. They conclude that they will therefore need to take care and consider taking additional steps to demonstrate that their users are freely giving their consent.
Organisation B considers their options, which are to:
- seek to demonstrate that, given their market position, there’s no clear power imbalance and that if people choose to leave or not use their service then they will not experience an unfair penalty;
- reconsider their pricing structure and seek to provide an option with an appropriate fee; or
- implement an option where they serve advertising not based on the personal information of their users (eg contextual advertising).
In order to ensure that their users have genuine freedom of choice, Organisation B introduces an additional, standard subscription option. This allows users to subscribe to receive the core service, with no personalised ads, for a fee which their evidence indicates would be appropriate. The standard subscription option allows users to access all basic news content, but not any of the additional content included in the premium subscription option. Alongside this, Organisation B continues to offer their premium subscription option for those who wish to access the additional content.
Organisation B also ensures that the way they present their offer is compliant with privacy by design principles. They carry out their assessment in line with the ICO’s guidance and in a way which reflects the nature and size of the organisation.