Controversial PwC contract has ‘commercial exploitation’ clause

Arts Council England (ACE) has left the door open for global consultancy firm PricewaterhouseCoopers (PwC) to "commercially exploit" audience data gained from arts and culture organisations as part of a controversial contract, Arts Professional has found.

Concerns were raised within the sector after it emerged last week that ACE had dropped arts and culture research specialists The Audience Agency from its sector support role, handing a new contract for data insights, worth £1.6m over three years, to PwC.

Among the fears was that data gathered on audience trends and demographics could be used by the supplier on a commerical basis in the financially lucrative field of "Facebook-style" targeted advertising.

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Documents seen by Arts Professional reveal that under the terms of the contract PwC will be not be able to commerically exploit data submitted by arts and culture organisations for the duration of the contract – which runs from April 2023 until March 2026. 

However, it could be given permission by ACE to do so once the contract has ended. 

In a document issued to potential bidders as part of the tender process ACE states: "All data collected must be used for the purposes of delivering the [contracted] services. 

"At this time, ACE does not agree to a supplier commercially exploiting the data collected or using such data for the benefit of its other customers during the contract term or after the contract has ended. 

"However, ACE may consider, during the term of the contract, permitting a supplier the right to commercially exploit the data after the contract has ended. 

"ACE, in its absolute discretion, may decide to grant the supplier such a right, subject to any conditions or restrictions."

Clause 14.8 of the contract states that "ACE and the supplier may consider varying the restrictions contained in Clause 14.7 [which bars commercial exploitation of the data] during the term [of the contract]".

The new contract for data insights work was put out for tender in April this year.

Under the deal, PwC will be required to establish a new online data collection and analysis platform and associated support services.

It will enable National Portfolio Organisations and other arts and cultural organisations outside the Naional Portfolio to collect and submit audience data and provide them and ACE with the ability to derive insights from the data. 

Audience demographics

Information arts and culture organisations provide to the platform will include their total audience volumes, touring information, postcode, and demographic data for their audiences such as ethnicity, age, gender, disability, socio-economic background of their audience, as well as box office transaction data.

Data of this kind can have significant financial value. In theory it could be sold to a third party which could then use it to target promotions and products to individual consumers based on their previous behaviour, although there are a range of other ways in which money could be made from it.

Asked by Arts Professional to clarify why the "commercial exploitation" clause was included in the contract, a spokesperson for ACE said:

"At the expiry of the agreement, the data will be transferred to Arts Council England (or a new supplier) and the supplier will be required to dispose of the data, as per the contract conditions, i.e., the supplier will not be able to use the data for commercial gain at contract end.

"Arts Council England will not give permission to PricewaterhouseCoopers to exploit commercially the data it gathers via its contract with us while the contract is in operation."

Pressed further on the issue, ACE issued a second statement suggesting that the clause had been inserted in order to allow room for the data to potentially be used for "public good" in the future.

"There is an additional clause where ACE reserves the right to vary the restrictions on the use of the materials more generally," a spokesperson said.

"This was included to not preclude the opportunities to extract further benefit from the materials for public good on a case by case basis (e.g., arms-length body or university research partnership)."