@BeckyAMumsnet - could you provide the link to your DPIA which demonstrates MNs assessment of the impact of the consent or pay model please? Or at the very least explain how the assessment confirms that you are complying with GDPR.
I may be reading it wrong, but it seems to me that the ICO guidance strongly suggests that the option to accept or pay a single monthly fee makes it difficult to demonstrate that consent is being freely given, especially if there is a power imbalance, which there is between MN and it's existing users, in which case, it is potentially illegal.
Relevant links below with the bits of the guidance relevant to MN highlighted in bold
https://ico.org.uk/for-organisations/uk-gdpr-guidance-and-resources/online-tracking/consent-or-pay/about-this-guidance/#law
Bundled access and “consent or pay” models
“Consent or pay” models differ from a “take it or leave it” model, as the presence of a “pay” option means that accessing the service is not solely conditional on people providing consent. This can, providing the model meets the factors in this guidance, enable people to make a meaningful choice.
However, the “pay” option may introduce a separate issue. Where a fee is presented as an alternative to consent, it has the effect of combining:
- access to the core product or service without personalised advertising; and
- not sharing personal data for the purposes of personalised advertising.
When the only alternative to consent is paying a single price which combines access to the core product with a fee for avoiding sharing personal data for the purposes of personalised advertising, it can be difficult to demonstrate freely given consent. You can find further details on this in the power imbalance and appropriate fee chapters.
Organisations can offer additional options to access the product or service alongside the “consent or pay” options, for example:
- Access to the product or service that does not require people to consent to personalised advertising or pay to avoid personalised advertising. This may include access to the service with contextual advertising where advertising is targeted based on the content of the page the user is currently viewing.
- Offering a menu of options including different premium subscription tiers with additional features, as well as the “consent” and “pay” options.
You can read further details about these options in the power imbalance, appropriate fee and equivalence chapters.
https://ico.org.uk/for-organisations/uk-gdpr-guidance-and-resources/online-tracking/consent-or-pay/power-imbalance/
Power Imbalance:
“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 refusing or withdrawing consent.
You should assess whether there is a power imbalance between you and the people that use your product or service. This should consider all the relevant circumstances, including:
- the type of organisation you are (for example, a public authority or someone in an employer-to-employee relationship);
- the extent to which people rely on your service; and
- your position in the market.
Your assessment for a power imbalance should form part of your overall assessment for demonstrating your “consent or pay” model’s compliance with data protection law. You should take a reasonable and proportionate approach to demonstrating how you’ve assessed your product or service against this factor.
You should consider the impact of introducing a “consent or pay” model on existing users of a product or service and whether there is a clear power imbalance with them, particularly considering any barriers to users switching and whether there are comparable alternative products or services they could use instead.
Where there is a clear power imbalance between you and the people that use your product or service, you are unlikely to be able to operate a “consent or pay” model without taking steps to address the power imbalance. This is because it is unlikely that people could provide freely given consent.
Where there is a clear power imbalance, you should take steps to address it and ensure people can freely give their consent. You could do this by offering an alternative way to access your service that doesn’t rely on the user consenting to personalised advertising or paying to avoid personalised advertising.