ICO yet to decide if ad-free subscriptions are unlawful

The Information Commissioner’s Office has admitted it does not know the legality of the controversial “consent or pay” services – which force online users to cough up cash if they do not want to be tracked for advertising – with the launch of an industry consultation to determine its regulatory approach.

Concerns over ad-free subscription services were first aired back in November, when the Max Schrems-backed privacy organisation NOYB filed a complaint with the Austrian data protection authority over Meta’s scheme for Facebook and Instagram.

At the time, Schrems said: “Fundamental rights are usually available to everyone. There were times when [they] were reserved for the rich. It seems Meta wants to take us back more than 100 years. It’s neither smart nor legal – it’s just pitiful how Meta continues to ignore EU law.”

Last month, the organisation was joined by 27 other civil rights groups in calling for the European Data Protection Board – the top governing body in the EU – to issue a binding opinion on the matter.

While the UK is not involved because Meta’s subscription service is not available here, other publishers are launching similar services.

In the ICO’s call for views, it highlights some factors organisations should take into account when considering if this model is right for them and their users. But it is inviting publishers, advertisers, intermediaries, civil society, academia and other interested stakeholders to respond and help inform its position.

The regulator has also written to the Association of Online Publishers and the Internet Advertising Bureau UK setting out its views on these and alternative advertising models. The ICO maintains there are many lawful ways to use online advertising when websites give people a fair choice over how their personal information is used.

Meanwhile, the regulator insists its crackdown on websites that do not offer people a fair choice continues, after MailOnline caved in to pressure to change its policy and offer readers a “reject all” button to opt out of online tracking.

ICO executive director of regulatory risk Stephen Almond said: “We have seen an almost 80% success rate in effecting change from the 53 organisations we wrote to last year. We are now preparing to write to the next 100 most frequented websites.

“Meanwhile, we are developing digital tools to evaluate website cookie compliance at scale, building on the successful hackathon we held with technical experts last month.

“Where organisations ignore the law, they can expect to face the consequences. We are reviewing responses received from organisations that have not made changes and determining which cases to prioritise for enforcement action.

“This is the last chance to change. Our next announcement in this space will be about enforcement action.”