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Equivalence

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At a glance

  • “Consent or pay” models must meet the standard for freely given consent. You must be able to demonstrate that people have a free choice to give consent and that they are not unfairly penalised for withdrawing or refusing consent.
  • If you are offering a “consent or pay” model, you should offer broadly the same core product or service under either option.
  • You should identify your core product or service and demonstrate that both the “consent” and “pay” options provide the core product or service. If you are offering more options, you may need to further consider how the equivalence principle applies to ensure there is freely given consent.
  • You can include additional benefits or features in either option, as long as the features or benefits:
    • included in the ‘consent’ option do not unfairly penalise people who refuse or withdraw consent;
    • do not change the core service; and
    • included in the ‘pay’ option do not drive the price beyond what would be an appropriate fee.
  • You can offer a range of different options which provide additional features or benefits such as premium subscription options. You should ensure that one of these options reflects the criteria described in this section. If you offer additional options to address issues such as a clear power imbalance, these options should also meet the equivalence factor.

In detail

Why is equivalence relevant to “consent or pay”?

Equivalence between the product or service offered under each of the “consent” and “pay” options is necessary to ensure that people have a genuine free choice about consenting to personalised advertising.  

Article 7(4) UK GDPR is clear that if consent is a condition of accessing a product or service but the processing isn’t necessary to provide the contractual product or service, it’s unlikely that a person’s consent is valid. Often, processing people’s personal information for personalised advertising is not necessary for the provision of a core product or service. 

If people can only access your product or service by consenting to processing for personalised advertising (ie a “take it or leave it” approach), this creates a situation where access relies on a person’s consent. This conditionality means it’s unlikely that a person’s consent would be valid. Offering a “pay” option, which allows people to access the service without giving their consent to personalised advertising, can remove this conditionality and create a genuine free choice for people. However, this is only a genuine and free choice if the services offered under the “consent” and “pay” options are broadly equivalent.

This is because the UK GDPR is clear that people must not experience an unfair penalty for refusing to provide their consent. Failing to provide an equivalent service may lead to an unfair penalty, for example if the “pay” option offers:

  • a lower-quality version of the core product or service; 
  • the same core product or service but includes differences beyond the core service which result in a materially worse service quality overall; or 
  • a completely different service altogether.

These examples do not offer a genuine free choice, as people would effectively be forced to consent to personalised advertising to access the core service they are interested in. 

People who have consented to personalised advertising must also have the option to withdraw their consent at any time without experiencing an unfair penalty 

What do you mean by “equivalence”?

Equivalence means that you should offer broadly the same core product or service under the “consent” option and the “pay” option. The product or service offered does not have to be identical, but the core product or service should be essentially the same and of the same quality.

How should we assess equivalence?

You should identify what your core product or service is. You should be able to explain and justify this using objective evidence. This could include: 

  • how you have referred to the product or service in your terms of service;
  • how you have marketed it externally; and
  • external sources, like reports from competition authorities.

You should demonstrate that both the “consent” and “pay” options provide this core product or service. You should assess the equivalence of the “consent” or “pay” options you offer and not base the assessment on alternative options offered by other providers in the same or similar market.

You should review this on an ongoing basis to determine whether changes to functionalities or features change the equivalence of the options.

Can we offer additional benefits or features?

Yes. You can offer features or benefits that are additional to the core service in the “consent” or “pay” options, as long as the core product or service is: 

  • equivalent;
  • of equivalent quality; and
  • the additional benefits or features do not change the nature of the core service. 

When you are assessing the quality of the service you offer, you should consider the following, non-exhaustive list of factors: 

  • functionality;
  • features;
  • available content;  
  • personalisation; and  
  • people’s control over their personal information.

Additional benefits in the “consent” option

Our guidance on consent sets out that you can incentivise people to give consent in some circumstances, as long as this does not amount to an unfair penalty for those who do not consent. You must be able to demonstrate that people can refuse consent without unfair penalty. 

The focus here is primarily on the quality of the core service. However, you should also consider the effect of tying any additional non-core benefits to consent for personalised advertising.If there is a reduction of overall quality to the product or service for the "pay" option that amounts to an unfair penalty for refusing or withdrawing consent, you should ensure that this is a direct and necessary consequence of not processing personal data for personalised advertising purposes. If it is not a necessary and direct consequence, the reduction in quality may amount to an unfair penalty, meaning that it’s unlikely that any given consent would be valid. 

You should not bundle consent for different purposes or types of processing together, unless these activities are clearly interdependent. You should not force people to agree to all or nothing – they may want to consent to some things but not to others. See the privacy by design chapter for more information.

Additional benefits in the “pay” option

You can include additional benefits in your subscription offer. However, you cannot use these benefits to set a higher, inappropriate fee for the subscription option for removing personalised advertising. See the chapter on appropriate fee for more information.

Can we offer a menu of options?

Yes. The equivalence factor does not prevent you from offering a range of different options which provide additional features or benefits (eg standard and premium subscription options) in addition to your “consent” option. To meet the equivalence factor, you must ensure that at least one other option: 

  • provides the core product or service;
  • does not require consent to personalised advertising;
  • does not unnecessarily reduce the overall product or service quality; and
  • does not have an inappropriately high fee.

In a “consent or pay” model, the “pay” option must meet these criteria. If you have introduced additional options to address a power imbalance (eg free access to the product or service with contextual advertising), at least one of these options should also meet these criteria.

What if there’s a lack of equivalence?

You should consider equivalence alongside the other factors set out in this guidance. If you cannot meet our expectations of equivalence, you must be able to demonstrate that people can still freely give their consent, taking all the other factors into account.

If you are unable to demonstrate that you offer an equivalent service across your “consent” and “pay” options, you should reconsider what you are offering to ensure you provide an equivalent service. 

In some cases, to provide valid consent an organisation may need to offer an additional option. This option would need to allow people to access an equivalent core product or service without requiring consent for personalised advertising or paying to avoid personalised advertising.