Lord Clement-Jones (LD)

My Lords, I will speak to Amendment 48B. In our view, cookie paywalls create an unfair choose for users, essentially forcing them to pay for privacy. We tabled an amendment in Committee to ban cookie paywalls, but in the meantime, as the noble Baroness, Lady Jones, heralded at the time, the Information Commissioner’s Office has provided updated guidance on the “consent or pay” model for cookie compliance. It is now available for review. This guidance clarifies how organisations can offer users a choice between accepting personalised ads for free access or paying for an ad-free experience while ensuring compliance with data protection laws. It has confirmed that the “consent or pay” model is acceptable for UK publishers, provided certain conditions are met. Key requirements for a valid consent under this model include: users must have genuine free choice; the alternative to consent—that is, payment—must be reasonably priced; and users must be fully informed about their options. The guidance is, however, contradictory. On the one hand, it says that cookie paywalls “can be compliant with data protection law” and that providers must document their assessments of how it is compliant with DPL. On the other, it says that, to be compliant with data protection law, cookie paywalls must allow users to choose freely without detriment. However, users who do not wish to pay the fee to access a website will be subject to detriment, because with a cookie paywall they will pay a fee if they wish to refuse consent. This is addressed as the “power imbalance”. It is also worth noting that this guidance does not constitute legal advice; it leaves significant latitude for legal interpretation and argument as to the compatibility of cookie paywalls with data protection law. The core argument against “consent or pay” models is that they undermine the principle of freely given consent. The ICO guidance emphasises that organisations using these models must be able to demonstrate that users have a genuine choice and are not unfairly penalised for refusing to consent to data processing for personalised advertising. Yet in practice, given the power imbalance, on almost every occasion this is not possible. This amendment seeks to ensure that individuals maintain control over their personal data. By banning cookie paywalls, users can freely choose not to consent to cookies without having to pay a fee. I very much hope that the Government will reconsider the ICO’s guidance in particular, and consider banning cookie paywalls altogether.