Consent or pay – okay for Meta in the UK ICO gives Meta the green light, but what do other businesses need to consider? There’s been much debate about Meta’s use of personal information to target Facebook and Instagram users with advertising. Until now, targeted advertising was part of the standard terms and conditions for UK users of these services, but the Information Commissioner’s Office (ICO) says this is not in line with UK law. Meta is now planning to switch to a ‘consent or pay’ model. A model which many of us are now familiar with when trying to access online newspaper articles. Consent or pay (aka ‘pay or okay’) gives users a choice: a) consent to being tracked for advertising purposes; or b) pay for an ad free service; or c) leave without accessing the content. It’s a model not without its fierce critics – how can consent be freely given? how can it be a genuine choice? There are clear battle lines between the right to privacy, data protection and ePrivacy laws, and the right to conduct business. The ICO seems to be trying to walk this tight rope. In a statement the regulator has welcomed Meta’s decision to move to asking for the consent of users for targeting ads, saying; “People must be given meaningful transparency and choice about how their information is used. At the same time, the ICO recognises that online platforms, like every business, need to operate commercially. There are a number of ways online platforms can do this in compliance with UK law and the ICO’s guidance. “Under Meta’s chosen approach, people will be able to choose between consenting to personalised ads or paying a monthly subscription for an ad-free service – known as a ‘consent or pay’ model.” A crucial point for the ICO is the pricing point for those who choose to pay. The ICO asked Meta to set a price which gives people a fair choice. As a result, Meta is said to have significantly lowered the starting price for a subscription, which will be close to half that of EU users. The ICO says it will continue to monitor the roll-out of Meta’s changes, and indeed other companies’ use of consent and pay models. 4 cornerstones of ‘consent or pay’ “Consent or pay” models can be compliant with data protection law if you can demonstrate that people can freely give their consent and the models meet the other requirements set out in the law.” ICO If you are using a consent or pay model, or considering implementing it – there’s the potential to find yourself on the regulator’s radar, so it’s worth familiarising yourself with ICO guidance. This guidance make it clear the right to the protection of personal data needs to be balanced against other rights, such as the right to conduct business. We may have got used to lots of free news content, online games, and other free services, but the ICO recognises organisations should be able to monetise products, and there is no obligation for providers of online services to offer their services for free. However, the ICO says any decision to adopt the ‘consent or pay’ model must be assessed and documented to make sure it’s compliant with the UK GDPR and the Privacy and Electronic Communications Regulations (PECR). Businesses need to be ready to justify their approach. The guidance sets out four key areas for an assessment to focus on. 1. Power imbalance: Is there a clear power imbalance between you and the people using your product or service? It’s unlikely that people can freely give their consent if they have no realistic choice about whether or not to use the service. You should especially consider existing users of your product or service under this factor. 2. Appropriate fee: Have you set an appropriate fee for accessing your service without personalised advertising? It’s unlikely that people can freely give their consent if your fee is inappropriately high, making it an unrealistic choice. 3. Equivalence: Is your core service broadly equivalent in the products and services offered where people consent to personalised advertising and where people pay to avoid personalised advertising? You can include additional perks or features in either service, however you should provide an equivalent core service across all options to ensure that people have a free choice. 4. Privacy by design: Do you present the choices equally to people, with clear, understandable information about what each choice means and what they involve? People cannot freely give their consent if they are uninformed about the available options or have their choice influenced by harmful design practices. What’s clear is the UK ICO is taking a more lenient approach to consent or pay than some of its European counterparts. The model continues to be scrutinised by EU data protection authorities, and is the subject of high-profile complaints by privacy right campaigners. It would be wise to do even more homework if you operate in the EU. European Data Protection Board Opinion on Consent or Pay. In all of this, while much ‘targeted’ advertising can be innocuous, in some cases ads can cause very real distress and harm when targeting goes awry. The BBC has written here about a case where mothers who lost their babies were still targeted with upsetting baby related content.

UK email marketing rules Is email marketing putting your business as risk? Hardly a month goes by without an announcement from the UK’s Information Commissioner’s Office of another business being fined for falling foul of the email & SMS marketing rules. It continues to surprise me some marketing and communications teams haven’t heard of the Privacy and Electronic Communications Regulations. They’ve been around since 2003 (far longer than GDPR) so businesses really have no excuse. Of course, there will always be some who want to try and get away with it. Under PECR there are specific rules for direct marketing by telephone, email and SMS, plus rules for cookies and similar technologies. Here I’m going to focus on email marketing. The same rules apply to SMS and to other ‘electronically stored’ marketing messages, including picture or video messages, voicemail, in-app messages and personal messaging on social media. Consent for business-to-consumer (B2C) marketing emails Unless using the exemption below, you must collect consent before you send email marketing to what are termed individual subscribers. This definition covers people who personally subscribe to their email service provider. For example people who give you their personal gmail, hotmail or btinternet email address. Soft opt-in exemption for business-to-consumer (B2C) marketing emails There’s an exemption to consent for B2C email marketing, commonly known as the soft opt-in. This can only be used if the following criteria are met: The individual’s contact details are collected during the course of a sale (or negotiations of a sale) of a product or service An opportunity to refuse or opt-out of the marketing is given at the point of collection and in every subsequent communication AND You only send marketing about your own similar products and services. See PECR Regulation 22 and the ICO Guidance on Electronic Mail This strict criteria means the ability for charities to rely this exemption is very limited. However, the UK Data (Use & Access) Act 2025 amends PECR and introduces the ‘charitable purpose soft-opt in‘, which we’ve written more about here. Marketing emails to business contacts (B2B) The rules on consent and the soft opt-in exemption do not apply to what are termed corporate subscribers. A corporate subscriber is described by the ICO as any corporate body (an entity with a separate legal status) with its own phone number or internet connection. For example, my work email address has the domain <name>@dpnetwork.org.uk. DPN Associates pays for this service, not me as an individual. Businesses don’t legally need consent to contact me at my DPN business email address. To quote the ICO on this: “The PECR rule on direct marketing by electronic mail does not apply to corporate subscribers. For example, this means you can send B2B direct marketing emails or texts to any corporate body. You do not need their consent under PECR to send such messages.” A couple of key points to bear in mind: A named business contact will still fall under the definition of personal data. Therefore B2B marketing to named individuals must comply with UK GDPR. Sole traders and some partnerships technically fall under the definition of individual subscribers, where consent or the soft-opt-in exemption would be required. The right to object Everyone has the absolute right to object to direct marketing. This applies to both B2C and B2B marketing communications. Marketing emails should always have an unsubscribe link or clear instructions how to opt-out. Businesses also need to make sure everyone who has opted-out of emails is not included again. Global email marketing If you’re a UK-based company sending marketing emails outside the UK, you’ll need to check the rules in the destination country. The rules in the recipients’ country will apply. The rules in Germany, for example, are stricter than they are in the UK. Rules differ across Europe and the rest of the world for B2C and B2B email marketing. What about UK GDPR? Once you’ve got the PECR rules straight, you need to also consider what’s necessary to comply with UK GDPR. For example you should be transparent about your activities, fulfil the right to be informed, the right to object to direct marketing and so on. You also need to identify a lawful basis for your marketing activities and meet the requirements of this lawful basis. Consent If you’re relying on consent under PECR, the ICO tells us consent must meet UK GDPR’s standards. In other words, consent should be ‘freely given, specific, informed and unambiguous’ and must be given by the individual with a ‘clear affirmative action’. One of the big changes under GDPR was the consent requirement became far stricter. It’s worth double-checking you’re meeting them. Consent – are you getting it right? Legitimate Interests If you don’t have to rely on consent, your other option is legitimate interests. There is a handy table in the ICO’s legitimate interests’ guidance under Can we use legitimate interests for our marketing activities?, which sets out when consent is required and when legitimate interests may be appropriate. It shouldn’t be a throwaway decision to rely on legitimate interests. GDPR requires you to carefully balance the legitimate interests of your business with the ‘rights and freedoms’ of the people you’re going to market to. You need to take care to make sure the rights of those whose data you’re collecting are not undermined by your business legitimate interests. We’d advise completing a Legitimate Interests Assessment (known as a balancing test) and keeping a record of this. Other areas to be mindful of Disguising a marketing message as a service message. Businesses will often need to send service messages by email for administrative or customer services purposes. These can be sent to everyone provided they only contain essential factual information for your customer. Such as confirming an order, confirming a delivery date/time, and so on. However, if there’s any promotional content, for example an upsell or cross-sell message, they will be deemed to be direct marketing messages and then PECR will apply. See Marketing and Service Messages Asking for permission to send marketing by email is deemed to be a marketing message in itself. So you can’t email people (‘individual subscribers’) to ask them to consent to marketing. ‘Hosted’ emails; this is where you use another organisation to promote your products or services to their database. This could cause a problem if you are judged to be the ‘instigator’ of these emails, especially in a B2C context, and valid ‘named’ consent wasn’t collected, i.e. your business wasn’t named when the other organisation collected consent. The above are all areas the ICO has taken action in the past. On the face of it, email marketing rules might seem a minefield of terms; consent, soft opt-ins, opt-outs, legitimate interests, sole traders and corporate subscribers. But once the rules are embedded into marketing teams’ heads and ways of working, it can make life easier and reduce the chances of unknowingly violating them and risking a fine.

Cookie reprimand and more ICO investigations How to get to grips with your cookies and similar technologies Following warnings issued to companies operating some of the UK’s most popular websites in relation to their use of advertising cookies, the ICO has issued a reprimand to a leading betting website. It’s also announced an investigation into a company which has failed to take action to meet cookie compliance requirements. Bonne Terre Ltd, training as Sky Betting and Gaming, received a reprimand for ‘unlawfully processing people’s data through advertising cookies without their consent’. Third-party tracking technologies including cookies were dropped by the SkyBet website onto use devices, which collected personal data (e.g. device id and unique identifiers). While the site had a cookie notification (pop-up) and a consent management platform (CMP), the ICO investigation found certain cookies were dropped onto user devices before visitors interacted with the CMP. This meant visitors’ personal information was being processed and made available to AdTech vendors without the visitors’ knowledge or prior consent. In my experience this is often an area organisations often get wrong; cookies and other trackers being deployed onto user devices immediately, regardless of the CMP. The ICO also looked into whether Sky Betting and Gaming were deliberately misusing people’s personal information to target vulnerable gamblers, but found no evidence of deliberate misuse. As a result of the ICO investigation, Sky Betting and Gaming made changes in March 2023 to make sure people could reject all advertising cookies before their personal information was shared down the AdTech supply chain. Along with this reprimand the ICO has announced it will be investigating a gossip website; Tattle Life. Despite receiving an ICO warning, Tattle Life is said to have failed to engage. What is the ICO’s key concern The ICO is focusing on meeting the requirement to give users a fair choice over whether they are tracked for advertising purposes. Along with not dropping non-essential cookies on a user’s device automatically regardless of whether they have given their consent, the ICO stresses organisations must make it as easy for users to ‘reject all’ as it is to ‘accept all’.  To be clear, websites can still display adverts when users reject tracking, just not ones which are tailored to the person’s browsing habits. Our 5 steps for compliant cookies So, how can we make sure we’re following the rules when we deploy cookies and other similar technologies? Here are some straight-forward steps to take: 1. Audit: Do a cookie audit. If you don’t know what cookies your website is using you can’t even start to be compliant. Run a diagnostic scan to discover exactly what cookies and similar technologies are currently deployed on your website(s). Establish what they are being used for, which are provided by third party providers and which involve the sharing of data with the third party (for example Google, Meta, etc). 2. Spring clean: Get rid of the cookies you no longer need. This might sound obvious, but you’d be surprised how often we find long-forgotten cookies lurking on websites, serving no purpose yet still needlessly sharing data with third parties! You might need to check with your colleagues which are still used. 3. Categorise: Categorise your cookies – what are they used for? Strictly necessary (essential) cookies – these are vital for the website to operate. For example, a cookie which helps keep the website secure, or a cookie which allows items to be added to a cart in an online store. Analytics/Statistics/Performance cookies – for example, cookies which allow you to monitor and improve the site performance. Functional cookies – cookies which enable a site to remember user preferences and settings, to enhance their experience on your website. Advertising/Targeting cookies – allowing visitors to be followed from one website to another so tailored advertising can be displayed, or to target the most relevant advertising on your own website. 4. Collect consent: The law tells us you need to collect consent for all cookies and similar technologies which are not ‘strictly necessary’ before cookies are dropped onto the users device. To achieve this, you may wish to select a specialist Consent Management Platform to handle notifications and consents for you, as a website ‘plug in’. There are many CMPs on the market, some of which are free. Beware that not all of them meet the UK/EU cookie requirements, so care is required when selecting the right one. If you use sub-domains on your website, deploy a high number of cookies or you want to exercise some creativity with how it looks, your likely to need a paid solution. 5. Notify website users: Provide a clear notification about the cookies and similar technologies you deploy. This should include: the cookies you intend to use; the purposes they will be used for any third parties who may also process information stored in or accessed from the user’s device; and the duration of any cookies you wish to set. There are two approaches to this. You can let the CMP handle both the notification (pop-up) and the provision of more detailed information about cookies, or you can use the CMP for the pop-up and provide a separate more detailed cookie notice. What are cookies and similar technologies? Cookies are small pieces of information, which are used when users visit websites. The user’s software (for example, their web browser) can store cookies and send them back to the website the next time they visits. The cookie rules also apply to any other technologies which stores or accesses information on a user’s device. For example, similar technologies could include, web beacons, scripts, tracking pixels and plugins. What the law says Contrary to what we often read in the papers, GDPR does not give us the rules for cookies and similar technologies. In the UK the rules are set out in the Privacy and Electronic Communications Regulations (PECR) which are derived from the EU ePrivacy Directive. The specific requirements vary by country, so think about which countries your site users visit from. Many EU countries have their own rules, all based on the same EU Directive but in the real world they have their own nuances. In simple terms, you can’t ‘drop’ a file on a user’s device or gain access to information stored on their device unless: a) You have provided clear and comprehensive information about your purposes for doing this, and b) You have collected the consent of the user. There is an exemption for strictly necessary cookies only. The cookie rules apply regardless of whether you’re processing personal data or not, i.e. these rule also apply to the automated collection of anonymised data. Some points worth noting from ICO guidance Consent needs to meet the requirements under GDPR for it to be a specific, informed, indication of someone’s wishes given by a clear affirmative action. You must inform users about what cookies you use and what they do before they give their consent. Where third-party cookies are used, you must clearly and specifically name who these third parties are and what they will do with the information collected. Users must be given control over non-essential cookies, and should be able to continue to use your website if they don’t give consent. It’s worth noting the ICO has determined analytics cookies are NOT essential and require consent. However, this is not always the case in other European countries. For example, the French regulator CNIL does not mandate the collection of consent for analytics cookies. They consider these cookies can be used under Legitimate Interests, which means they still require websites to notify users and give them the opportunity to object (opt-out). The future and alternative solutions for cookies In both the UK and in the European Union there’s a concerted desire to simplify the rules and remove the necessity for everyone to be faced with a barrage of cookie pop-ups on every website they visit. As yet however, a suitable solution has not been agreed. Instead of using third-party cookies to help target advertising, there are a growing number of contextual advertising solutions, which are less intrusive, and a growing interest in more privacy friend Edge Computing Solutions. However, there’s a sense these alternatives are not yet fully tried and tested. So we’ve seen a move by some organisations (particularly publishers) to a consent or pay model.

Yet more CC email data breaches Despite a stark warning from the Information Commissioner’s Office last year that a failure to correctly use the BCC field (Blind Carbon Copy) is one of the most common cause of breaches – the mistakes keep happening. The ICO has recently fined and issued a reprimand to the Central YMCA for sending an email to individuals participating in a programme for people living with HIV. The CC field was used, thereby revealing the email addresses to all recipients. 166 recipients could be identified or potentially identified from this, and it could be inferred they were likely to be living with HIV. Then we hear the Conservative party has reported a breach to the ICO, after hundreds of email addresses were visible to all recipients in an email communication promoting the party’s annual conference. Again a mistake in using CC rather than BCC. The latter would have kept email addresses private. And a mistake which has the potential to reveal people’s political affiliations. Last year in response to the number of breaches of this nature, the ICO published specific email security guidance to try and help organisations make sure their email communications are more secure. Such breaches can cause considerable distress and harm, especially if sensitive personal information is involved, or can be inferred from the context of the email. The Regulator provides the following suggestions: Setting rules to provide alerts to warn employees when they us the CC field. Setting a delay, to allow time for errors to be corrected before the email is sent. Turning off the auto-complete function to prevent the system suggesting recipients’ email addresses. Making sure staff are trained about security measures when sending bulk communications by email Using alternative more secure bulk email solutions. The Central YMCA and Conservative Party are not the first to find themselves in the spotlight for incorrectly using CC. Sadly, I suspect they won’t be the last. A couple of years ago, HIV Scotland was fined for failing to protect personal data. An email was sent to 105 members of HIV Scotland’s Community Action Network (CAN). Email addresses were visible to all recipients in the CC field. Although the email addresses themselves may be considered fairly innocuous, due to the nature of the email, the charity had inadvertently disclosed special category data. The ICO commented assumptions could be made about individuals’ HIV status or risk from the data disclosed. The ICO investigation found a number of shortcomings in the charity’s email procedures, including inadequate staff training and an inadequate data protection policy. The message is simple: the BCC method of bulk email is open to human error, and not advisable when sending bulk emails to multiple recipients and/or if the email could reveal sensitive information. Instead the advice is to use other secure means, such as bulk email services. This would prevent the chance of mistakes being made. The ICO says it would also expect businesses have policies and training in relation to email communications. It’s also worth checking out the National Cyber Security Centre’s useful Email Security Checklist.

Quick Guide to UK GDPR, Marketing and Cookies How UK GDPR and PECR go hand-in-hand Most have heard of GDPR. However, data protection law existed way before this new kid arrived on the block in 2018. And let’s not forget in the UK, GDPR has an equally important cousin called PECR. The UK’s Privacy and Electronic Communications Regulations (PECR) have been around since 2003 before the days of smartphones and apps. Organisations need to consider both UK GDPR and PECR when it comes to marketing and cookies. Why marketers need to pay attention There are more fines issued by the Information Commissioner’s Office (ICO) for falling foul of the PECR marketing rules than there are under UK GDPR. Under UK data reform plans, the amount the Regulator can fine under PECR could be set to increase substantially to a maximum of around £17 million. Currently the maximum fine under PECR is £500k. So it’s worth taking notice. This is a quick overview, and we’d encourage you to check the ICO’s detailed marketing guidance and cookie guidance. What’s the difference between UK GDPR and PECR? In a nutshell… UK GDPR ✓ Tells us how we should handle personal data – information which could directly or indirectly identify someone. ✓ Sets out requirements organisations need to meet and their obligations. ✓ Provides us with seven core data protection principles which need to be considered whenever we handle personal data for any purpose, including marketing. ✓ Defines the legal standard for consent, which is relevant for direct marketing ✓ Gives people privacy rights, including an absolute right to object to direct marketing. One of the principles is that processing of personal data must be lawful, fair and transparent. This includes making sure we have a lawful basis for our activities. PECR ✓ Sets out specific rules for marketing to UK citizens, for example by emails , text messages or conducting telemarketing calls to UK citizens. ✓ Sets out specific rules when using cookies and similar technologies (such as scripts, tracking pixels and plugins). PECR is derived from an EU directive, and EU countries have their own equivalent regulation which, whilst covering similar areas, may have different requirements, when marketing to their citizens. We’ve written about the specific rules for email marketing and telemarketing here: UK email marketing rules UK telemarketing rules The ‘soft opt-in’ – are you getting it right How do UK GDPR and PECR work together? Direct marketing Marketers need to consider the core principles of UK GDPR when handling people’s personal information. Furthermore, they need to have a lawful basis for each data activity. Of the six lawful bases, two are appropriate for direct marketing activities; Consent and Legitimate Interests. Consent: PECR tells us, for certain electronic marketing activity, we have to get people’s prior consent. UK GDPR tells us the standards we need to meet for this consent to be valid. Consent – Getting it right Legitimate interests: If the types of marketing we conduct don’t require consent under PECR , we may choose to request consent anyway, or we could rely on legitimate interests. For example, marketing to business contacts rather than consumers. Under GDPR, we need to be sure to balance our legitimate interests with the rights and interests of the people whose personal information we are using – i.e. the people we want to market to. ICO Legitimate Interests Guidance  What about cookies? PECR requires opt-in consent for most cookies or similar tech, regardless of whether they collect personal data or not. And we’re told this consent must meet the UK GDPR standards. In simple terms, the rules are: ✓ Notify new users your website/app users about your use of cookies or similar technologies and provide adequate transparent information about what purposes they are used for. ✓ Consent is required for use of cookies, except a narrow exclusion for those which are ‘strictly necessary’ (also known as ‘essential’ cookies). ✓ Users need to be able to give or decline consent before the cookies are dropped on their device and should be given options to manage their consents at any time (e.g. opt-out after initially giving consent).

PECR fine for invalid marketing consent What lessons can we learn from the HelloFresh case? HelloFresh used a marketing consent statement with a clear opt-in box for customers to tick, but the ICO has ruled the wording of the statement did not meet the requirements for consent to be specific and informed. The regulator has issued a £140k fine. Sometimes, the ICO issues fines under PECR based on only a handful of complaints, however in this case thousands of complaints were raised via the ICO spam reporting tool. The online meal order business was found to have sent over 80 million marketing email and text messages between September 2021 to February 2022 without first collecting valid consent. When relying on consent for direct marketing under PECR, consent must meet the UK GDPR requirements; a freely given, specific, informed and unambiguous indication for an individual’s wishes, given by a clear affirmative action. What ‘consent’ statement was used? The consent statement HelloFresh used at the time was as follows: “Yes, I’d like to receive sample gifts (including alcohol) and other offers, competitions and news via email. By ticking this box I confirm I am over 18 years old”. This was relied on to send marketing emails and texts to customers with an active or paused subscription, and to former customers who’d cancelled their subscription within the last 24 months, but had given their ‘consent’ for marketing. Users were able to update their communications preferences via an app, but the settings did not allow users to set preferences individually by channel e.g. phone, text and/or email. ☛ Consent: Getting it Right Key ICO findings Two points were highlighted as being particularly relevant in this case: for consent to be valid it is required to be “specific” as to the type of marketing communication to be received, and the organisation, or specific type of organisation, that will be sending it. ‘consent will not be “informed” if individuals do not understand what they are consenting to. Organisations should therefore always ensure that the language used is clear, easy to understand, and not hidden away in a privacy policy or small print. The ICO found HelloFresh’s statement did not satisfy the requirement for consent to be “specific” and “informed” because: Consent for marketing was not clear, as it was bundled in with other aspects. It combined an age confirmation statement and consent to receive free samples with consent for marketing by email. It failed to tell people about text messages and thereby failed to collect valid consent for marketing by text message. Customers were not told they could receive direct marketing messages for up to 24 months after they’d cancelled their subscription. Key takeaways (no fresh veg included I’m afraid) ✓ Collect consent separately for different aspects /activities – don’t bundle everything into the same tick box In my opinion using; I’d like to receive sample gifts (including alcohol) and other offers, competitions and news via email would have been okay for email marketing. The big problem was adding; By ticking this box I confirm I am over 18 years old. This clearly should have been separate, and the ICO found this was likely to ‘unfairly incentivise’ customers to agree. ✓ Collect consent separately for each marketing media channel you want to use for communications e.g. telephone, text and email In my opinion, HelloFresh may have avoided regulatory scrutiny if the statement had at least mentioned ‘via email and text’. The safest approach (from a regulatory perspective) is to collect consent by channel. Also in our experience, people may want email, but not texts, so separating them can optimise email opt-in. ✓ Don’t assume you can continue sending marketing to people after they have cancelled a subscription with you The last point is interesting and a little surprising. The ICO is indicating that even if a customer has consented to marketing when they take out a subscription, this may not be valid once the customer ends that subscription – unless people are made aware of this when they give their consent. I doubt this point would ever have been picked up if HelloFresh had clearly collected consent for marketing by text in the first place. Picking through the detail of ICO fines under PECR is always worth doing. The findings can give a nudge to check you aren’t doing anything similar. The full details can be found in the ICO’s enforcement notice.