Media Briefing: ‘Surveillance pricing’ laws are coming for dynamic subscription strategies 

This week’s Media Briefing looks at whether the era of quietly charging subscribers different prices for the same news subscription may be coming to an end, as a lawsuit over “surveillance pricing” and new legislation in New York put publishers’ subscription pricing tactics under fresh scrutiny.

• WTF is “surveillance pricing” for subscription publishers?
Google threatens to cut publishers out of new AI partnerships, New York Times amends lawsuit against OpenAI, and more.

WTF is “surveillance pricing”?

Publishers may advertise a single subscription price on their websites, but in practice subscribers pay a range of prices due to promotional, introductory and retention discounts. Now some of the tactics behind those prices could be challenged by recent legislation in New York.

One of the first signs of this is a recent class action lawsuit filed against The Washington Post, which alleges the news publisher collected readers’ personal data, including demographics and browsing activity, to set different subscription renewal prices – without disclosing this practice to readers. The lawsuit, filed in the local D.C. Superior Court on June 11, claims subscribers saw renewal offers ranging from $60 to $170. It accuses The Post of “surveillance pricing” practices.

“This is an example of the use of your digital footprint in order to make an assumption about you that changes what opportunities are available to you, at what price, on a day-to-day basis,” said Cecilia Jeong, a data privacy attorney at law firm Gunderson Dettmer.

“Dynamic pricing” is a fairly common practice among subscription publishers. The question now is how far it can go before it runs afoul of new rules – and what publishers need to change before New York’s bill, which could take effect next year, comes into force. 

Who pays what?

The Federal Trade Commission (FTC) and state-level bills are converging on the same concern: companies quietly using detailed personal data to decide who pays what. The FTC began cracking down on what it called “surveillance pricing,” or using personal data to set individualized prices, in 2024. It’s also called “algorithmic pricing” or “personalized pricing.”

The term is also central to a new bill in New York called the “One Fair Price Act,” passed by the state legislature on June 4. If signed by Governor Kathy Hochul, New York will become the third state to curb algorithmic pricing. Maryland and Connecticut passed similar laws earlier this year. Hochul has until the end of the year to act on the legislation and amendments can still be made before then.

“With the sensitivity around new privacy laws for personal information, and the amount of information that’s out there – in terms of services and apps and financial data that people have – lawmakers are getting concerned that businesses are really going to start to present different prices to consumers. And you won’t know. You’re sitting there looking at your phone, and you’re getting a different price than I see for something I’m looking at on my phone,” said Gary Kibel, partner at law firm Davis+Gilbert, which advises media and advertising clients.

These regulations are trying to crack down on potential discrimination from using an algorithm to determine pricing, Jeong said.

“There really isn’t an understanding or transparency around what the levers are [for pricing], what the algorithm is, what facts are being put in, what data the LLM is being trained on and what protective measures are in place, the safeguards, in order to make sure that there isn’t bias or determination happening within the algorithm,” Jeong said. “A lot of those mechanisms are held closer to the vest by design.”

How does this differ from “dynamic pricing”?

For many years, publishers have used “dynamic pricing”– using an algorithm to inform the subscription offers – to target discounts and mitigate churn due to cost. 

“It’s likely that the vast majority of news subscription prices are using some form of dynamic pricing today,” said Matt Lindsay, CEO and founder of Mather Economics, a firm that helps publishers develop consumer revenue strategies. “It’s a very common practice. It has added tremendous value to the industry.”

So-called surveillance pricing is a subset of dynamic pricing, Lindsay said. Some see it as an inflammatory term used to make the practice sound nefarious – similar to “surveillance advertising,” Kibel said.

“What we recommend [is what we would] characterize more as strategic discounting or dynamic discounting,” Lindsay said. “The subscription price is generally a base price or a list price for a subscription product, and in general, all subscriptions will move to that price. But it’s just a matter of how do they do that. There’s always hundreds of prices in a publisher, because they’ll have different acquisition [and retention] offers, and different terms. If the customer calls to leave, you usually try to save them with some sort of retention offer.” 

The practice is one way publishers can ensure they’re not undercharging (and losing revenue) or overcharging people (and driving churn).

The Atlantic, for example, launched a dynamic paywall in 2022 that offers different acquisition and renewal prices to cohorts of readers. The model is based on reader behavior on The Atlantic’s site, not other data such as demographics or location, CEO Nick Thompson told Digiday at the time. It can lower renewal rates closer to an introductory price for cohorts more likely to churn, or raise renewal prices for those deemed less likely to cancel. The Atlantic did not immediately respond to a request for comment on whether or not these practices have changed since then. 

What does this mean publishers will no longer be able to do?

Publishers will still be able to give introductory offers on their subscriptions that roll into the listed price, because it would be the same offer for everyone and considered a “bona fide discount,” per the New York bill. They will also be able to offer promotions for categories of consumers, such as veterans and seniors.

What publishers won’t be able to do is use personally identifiable data to inform subscription offers. That includes behavioral data like browsing history and real-time location.

“My understanding is many publishers do not use the data that [the bill is] mentioning,” Lindsay said.

Publishers will still be able to use algorithms to inform subscription pricing – as long as they disclose this to readers, Kibel said. And, of course, as long as the algorithm isn’t setting prices based on personal data. If a company uses dynamic pricing that changes more than once in a 24-hour period, it must disclose that it uses dynamic pricing, how often prices change, and what conditions influence the price adjustments.

Flouting the regulations could result in civil penalties of up to $5,000 for the first violation, and up to $20,000 for each subsequent violation.

The bill does not distinguish between personal data collected by first-party or third-party sources and broadly prohibits using personal data for surveillance pricing regardless of its source. Jason Kint, CEO of digital media publisher trade group Digital Content Next, called this “government overreach,” arguing publishers should be able to use first-party data as they see fit.

“If the data is being collected as part of your choice to use the website, then you have a choice to not use the website at the end of the day. As long as you’re making that choice to use the website, and they’re transparent about it, that business can use your data [to offer targeted content and ads],” Kint said. “[Publishers] should have the right to be able to charge a different price to that person based on what [they] know about them.”

What should publishers do now?

Lindsay is working on a guide to help publishers ensure their subscription pricing tactics are compliant before the bill goes into effect.

The first step, he said, is to review current subscription pricing practices, and change any gray areas that could fall under what the New York bill prohibits, Lindsay said.

“I’m recommending my clients do a diagnostic or review [on their] current practices,” they said.

Does this crackdown help consumers?

In theory, yes – that’s the whole point. But in practice… maybe not. It depends who you ask.

“This bill… could ironically hurt consumers that would naturally get discounts,” Lindsay said. “A lot of the discounts that publishers give to people are really for price-sensitive customers… So if you constrain the information publishers have, you’re more than likely to hurt somebody that was getting a discount, than you are somebody that was getting a premium price. How can [publishers] continue to retain these price-sensitive customers, if their ability to offer targeted discounts is reduced?”

Kint also said personalized pricing is more often used by publishers to offer subscription price discounts, rather than to try to get more money out of a subscriber.

“If you’re trying to drive up a higher price and you’re not providing the value that the person on the other end expects, you’re going to lose them. They have a direct relationship with their subscriber and the customer. It should be left to them to determine what’s best for that relationship. It’s garbage to be limiting that practice for the direct relationship,” Kint said.

Kibel gave an analogy of a company representative handing out physical coupons in a neighborhood with residents who may be less likely to afford their product, and not passing out those coupons in a wealthier neighborhood.

“Is it unfair to the consumer? Is it unfair to the marketer? Somebody’s going to be unhappy,” he said.

What we’ve heard

“So far – cross our fingers – what we’re seeing is our search traffic has been maintaining and growing… We are just working very closely with how we treat the paywall alongside monitoring what is happening to our search traffic. But we really have found that there’s been no impact on the ad model [or traffic] to the negative. In fact, the enhancements we’ve been making to BBC.com have just strengthened our audience engagement, which has worked to the benefit on the advertising side.”

— Tara Maitra, head of commercial news at BBC.

Numbers to know

35: The number of media companies that filed a lawsuit against OpenAI and Microsoft for scraping content without their permission or compensation. Those companies own or operate nearly 400 local and regional news outlets across the U.S.

£575 million: The cost of the Telegraph’s takeover by European media group Axel Springer, which was completed this week.

55: The number of new jobs the Guardian plans to create in the U.S., U.K., and Australia in the next year, part of a digital and global expansion.

$800,000: The annual salary of Dianna Russini, the NFL reporter who resigned from The Athletic in April after photos were shared of her with a football coach, making her one of the highest-paid journalists at the Times Company.

What we’ve covered

How Time and others are rebuilding parts of the web for AI agents 

• To stay visible in AI search, Time, The Economist and another major news publishers are already experimenting with parallel, agent-readable versions of their sites to prepare for the agentic web.
• Time, for example, is converting all its webpages from HTML into markdown versions, a simplified format that AI systems and agents can process more efficiently. 

Read more here.

The Economist launches new audio and video tier targeting younger subscribers 

• The Economist has begun offering a lower-priced subscription tier for its audio and video journalism, called Economist Play, in certain markets. 
• For about $15 a month – roughly $10 less than an all-access premium subscription – the new tier is the latest step in The Economist’s strategy to use audio and video as a gateway for younger, more gender-balanced audiences and to deepen engagement with existing subscribers.

Read more here.

 Inside Unilever’s 50,000-creator World Cup play

• Last year, Unilever laid out an ambitious World Cup strategy as the official personal care brand of the 2026 tournament, not long after declaring it would devote half of its media spend to social and creator marketing.
• Now, at the height of the summer soccer tournament, Digiday has seen firsthand how that plan has played out: Unilever says it has activated 50,000 creators and influencers worldwide.

Read more here.

Amazon expands media footprint with iHeart sales deal and new TV outcome tool 

• Amazon is pushing deeper into the middle of TV and audio ad deals, rolling out a new measurement tool for streamers while tapping iHeartMedia’s 1,000-plus sellers to put its streaming inventory on more media plans. 
• In the past week, iHeartMedia has expanded its relationship with Amazon Ads to resell inventory across Twitch, Amazon Music, Fire TV and Alexa, on top of the Prime video slots it already resells. Together, the two moves mark the latest step in Amazon’s years-long push to build direct data-driven ties with premium publishers.

Read more here.

What we’re reading

Google threatens to cut publishers out of new AI partnerships

Google has been pitching publishers on a new pilot program that would promote their content in Google’s AI Overviews, which could help to improve declines in earch traffic, The Information reported. However, Google is threatening to cut publishers out of those deals if they do not let Google’s AI bots train on their content. 

The New York Times amends its lawsuit against OpenAI and Microsoft

The New York Times amended its 2023 lawsuit against OpenAI and Microsoft, expanding its allegations against Microsoft for alleged copyright infringement and removing its claim that OpenAI was secondarily responsible for copyright infringement by not stopping users from generating copyrighted material using AI, The New York Times reported.

Google AI changes threaten publishers’ Discover traffic

Google’s rollout of AI-generated summaries in Google Discover is raising concerns that publishers could lose another major source of referral traffic, Press Gazette reported.

Former Washington Post TikTok host plans to expand his company to longform videos 

Dave Jorgenson – who launched The Washington Post’s TikTok channel in 2019 – left the Post to start his own company, Local News International, nearly a year ago. Two of his Post colleagues, Micah Gelman and Lauren Saks, have joined him, and the company is now profitable. Next, Jorgenson wants to create long-form video and bring on creators, he told A Media Operator.

What are the most trusted news outlets in the US?

The Weather Channel, PBS, The Wall Street Journal, BBC and the Associated Press are the most trusted news outlets in the U.S., according to a new YouGov report. The least-trusted outlets included Breitbart News, One America News and Fox News.