The marketing “soft opt-in” for charities: an exciting opportunity?

Following a successful campaign by charities, amended legislation has been proposed to enable charities to rely on the “soft opt-in” for direct marketing emails and text messages, making it easier for them to contact existing supporters.

Direct marketing soft opt-in

The Privacy and Electronic Communications Regulations 2003 (PECR) ordinarily require organisations to obtain a person’s consent to send electronic direct marketing communications to them. Businesses can take advantage of an exemption, however, that enables them to send emails or texts to existing customers about products and services, without obtaining specific consent (ie the “opt-in”). Provided a customer has supplied their contact details as part of an earlier purchase and does not opt out of marketing communications initially (or at any time afterwards), a business can keep contacting them about similar products and services.

However, the “soft opt-in” currently only applies to commercial marketing and cannot be used by charities to send fundraising or campaigning texts or emails, even to existing supporters (including donors). Charities have therefore only been able to make use of it in connection with commercial services or products they offer, such as those sold through an online shop via its trading subsidiary, or tickets to an event.

WaterAid’s fundraising manager has said the following about the current preferential treatment afforded to businesses:

“This disparity suggests that a person’s relationship with a charity is valued less than with a retailer – an implication that is far from reality and undermines the essential support work charities rely on to carry out their vital work.”

The previous government’s Data Protection and Digital Information Bill had included a provision to extend the soft opt-in to direct marketing that furthered a charitable, political or non-commercial objective. However, this reform faltered as the legislation was scrapped on last July’s general election being called.

The Labour Government picked up the baton on data protection reform in the Data (Use and Access) Bill that is currently making its way through Parliament. However, as originally proposed, this did not extend the soft opt-in to charities.

Charities successfully campaign for change

Charities, with support from the Data & Marketing Association (DMA), lobbied the Government to extend the soft opt-in as had been proposed by the previous government. This culminated in 19 major UK charities, including Oxfam and WaterAid, writing an open letter to Secretary of State for Science, Innovation and Technology, Peter Kyle in November 2024 requesting that the Data (Use and Access) Bill be amended accordingly.

The campaign was a success, and the Bill now includes a provision that permits charities to rely on the soft opt-in to send electronic mail for direct marketing purposes (by amending Regulation 22 of PECR). The amendment was spearheaded by Lord Vallance (a Labour peer and government minister), and it is expected that it will eventually receive Royal Assent (the Bill is in its final stages in the House of Commons).

In campaigning for the Bill’s amendment, the DMA estimated that extending the soft opt-in to charities will increase annual donations in the UK by £290m. As a result of the recent changes, it has said that:

“This decision marks a significant step forward in empowering the charity sector to strengthen relationships with supporters, foster deeper community connections, and ultimately enhance the impact of their vital work”.

Following the Bill’s amendment, charities will need to ensure the following to take advantage of the soft opt-in:

• The sole purpose of the direct marketing emails or texts must be to further one or more of the charity’s charitable purposes.
• The charity must have obtained the contact details of the recipient of the email or text when that individual expressed an interest in, offered to support, or in fact supported one or more of those charitable purposes.
• The recipient must be given a simple means of opting out of direct marketing, both when their details were first collected and in each subsequent communication.

This mirrors the existing soft opt-in for businesses but relates it to a charity’s charitable purposes rather than commercial products and services. Interestingly, unlike the Conservative government’s proposal, it does not extend to direct marketing that furthers a political or non-commercial purpose.

While expressing support for the extension, the ICO has said that it expects charities to “consider implementation carefully, including their UK GDPR obligations”. It has warned that, in some cases, it may not be appropriate to rely on the soft opt-in, such as “where someone accesses an organisation’s crisis service and subsequently sending them direct marketing mail could result in harm”.

Assuming the amendment is passed, charities will need to consider:

• Implementation: internal systems must be able to distinguish between recipients of emails and texts who have historically provided an express opt-in and those for whom a soft opt-in will now be relied upon. Clear, consistent and effective opt-out tools should be designed and implemented. We know of cases where an organisation’s email software has collected opt-out data but failed to action those opt-outs due to an error or deficiency, such that individuals keep receiving marketing communications in breach of PECR and the Code of Fundraising Practice. Proper record keeping and database management will therefore be key.
• Consistency: the soft opt-in will permit charities to promote similar goods, services or charitable objectives. They should be mindful of these limitations and avoid, for example, relying on the soft opt-in to advertise a third-party’s unrelated products.
• Vigilance: the Bill includes proposals to increase fines for non-compliance with the direct marketing rules (increasing the maximum potential fine from £500,000 to £17.5m, or 4% of an organisation’s global turnover). While more trivial instances of direct marketing in breach of PECR are unlikely to attract substantial fines, charities can ill afford to be sanctioned for breaching the rules. The Information Commissioner’s Office (ICO), as the UK regulator for PECR and data protection compliance, has other enforcement powers alongside fines, including warnings and reprimands. Charities must be mindful of their new responsibilities when relying on soft opt-ins, including in relation to the points mentioned above.

We welcome this development, which should afford substantial advantages for charities (albeit while posing new legal and compliance challenges). Accordingly, charities that wish to take advantage of the soft opt-in should start preparing now.

This publication is a general summary of the law. It should not replace legal advice tailored to your specific circumstances.

© Farrer & Co LLP, March 2025