How to use the ‘charitable purpose soft opt-in’

The Data Use and Access Act (DUAA) 2025 amends the Privacy and Electronic Communications Regulations (PECR), allowing charities to send direct marketing about their charitable purpose(s) without consent. But only IF they can meet specific criteria.

The ICO’s draft guidance on this change, sets out when charities can and can’t use the so called ‘charitable purpose soft opt-in’. This draft is open to consultation, and as such could be subject to change. To make a clear distinction the ICO refers to the existing exemption to consent as the ‘commercial soft opt-in’.

This change is expected to take effect from January 2026 and until it has legally taken effect it must NOT be used by charities.

What’s the ‘commercial soft opt-in’?

The existing exemption to consent can be relied upon to send electronic marketing (e.g. emails and texts) only if ALL of the following conditions are met:

✔ A person’s contact details are collected during the course of a sale, or negotiations for a sale, of a product or service;

✔ An opportunity to refuse or opt-out of the marketing is given at the point of collection, and in every subsequent communication;

✔ You only send marketing about your own similar products and services (not those of a third party).

The phrase ‘course of a sale, or negotiations for a sale’ has largely excluded charities from relying on this exemption, with limited use for example if you have an online charity shop.

Quick note: the rules under PECR on consent and the soft opt-in exemption apply to electronic marketing to ‘individual subscribers’ i.e. people’s personal email addresses. They don’t apply to emails to business contacts. See UK email marketing rules and ICO guidance on marketing to business contacts

What’s the new ‘charitable purposes soft opt-in’?

The ICO’s draft guidance states organisations will be able to use the charitable purpose soft opt-in instead of consent, if the following requirements are fully met:

✔ You’re a charity – as defined under the law in England, Scotland or Northern Ireland.

✔ The sole purpose of your direct marketing is to further one or more of your charitable purposes.

✔ You obtained the contact details directly from the recipient. The ICO stresses ‘there is no such thing as a third-party marketing list that is ‘soft opt-in compliant’.’

✔ You obtained the details in the course of the recipient:
– expressing an interest in one or more of your charitable purposes

For example; signing up to your charity’s website or newsletter, requesting information about your charitable purposes, events or services you offer.

or

      – offering or providing support to further one or more of your charitable purposes.

For example; the recipient donates to, or volunteers to help your charity.

✔ You gave an opportunity to refuse or opt out when you collected the details.

✔ You give an opportunity to refuse or opt out in every subsequent communication.

What is a charitable purpose?

The Charities Act 2011, and equivalent legislation in Scotland and Northern Ireland provides a non-exhaustive list of examples which can be considered charitable purposes, if done for the public benefit. The ICO says furthering your charitable purpose can include activities such as:

✔ Requesting donations, including financial contributions and donations of clothes, food or other items

✔ Requesting volunteers help

✔ Providing information about your charity’s activities, including the work you do and the services you provide.

Do charities have to make changes?

The short answer is NO. This is a choice. Stick with consent where you currently use it for direct marketing, or switch to the charitable purpose soft opt-in if you wish to, and if you can meet it’s specific requirements.

5 key points to bear in mind

If you’re looking to make the switch from consent, we’d advise reading the ICO draft guidance in full. However, we’ve picked out some pertinent matters to consider.

1. It can’t be used retrospectively

The ICO stresses you can’t use this change to send electronic marketing (e.g. email and text) to people whose details you’ve already collected before it takes effect.

The Regulator says this is because, if you’ve been relying on consent you won’t have offered people an opportunity to opt-out. Furthermore, you’re unlikely to meet wider data protection obligations such as satisfying the legitimate interests balancing test and the transparency principle.

2. No promotion of third parties

The charitable purposes soft opt-in can only be used to further your own charitable purposes. It must not be used to send marketing about other organisations, including other charities.

3. The charitable purposes and commercial soft opt-ins are NOT interchangeable

This is where the draft guidance gets more nuanced. The ICO says you can’t send electronic marketing about your charity’s commercial activities using the charitable purposes soft opt-in. Conversely, you  can’t send electronic marketing about your charitable purposes using the commercial soft opt-in.

This means if you rely on either soft opt-in you can’t mix up the content of an email or text marketing message. It must either relate to your charitable purposes or be about commercial activities, not both.

The ICO gives an example of charities who carry out commercial activities like selling second-hand items. The regulator says; “someone buying these items would not be considered as offering or provide support to further your charitable purpose because there may be other reasons for them to buy the items.”

In this situation the ICO says you’d need to ask people for their consent to send electronic marketing about your charitable purposes, or look to rely on the commercial soft opt-in to send electronic mail solely about your commercial activities.

In practice, the ICO’s guidance means if you intend to use both types of soft opt-ins, your CRM platform will need to be able to support this distinction and communications teams will need to clearly understand what can and can’t be sent to different audiences.

4. Meeting all the soft opt-in criteria might not be enough

The ICO says there may be some situations even when you meet the criteria above where it may still not be appropriate to send electronic mail marketing. An example is given of how it could cause harm to send direct marketing to someone who’s accessed a charity’s crisis intervention service.

5. Don’t forget you still need a lawful basis

When using either the charitable purposes or commercial soft opt-in, you will still need a lawful basis under UK GDPR when processing people’s personal information. If not consent, the only other appropriate option for direct marketing is likely to be legitimate interests.

When relying on legitimate interests you need to balance your interests and make sure these don’t negatively impact on the recipient’s rights and freedoms.

To comply with the law the regulator says you should conduct a legitimate interests assessment. This will help you to ask the right questions and objectively weigh up people’s reasonable expectations and any impact your activities could have on them.

6. Privacy notices will need updating

You’ll need to make sure relevant privacy notices are updated to clearly call out where direct marketing is carried out based on legitimate interests.

Pros and cons of the charitable soft opt-in

More broadly than meeting legal requirements and regulatory expectations, in my experience there are some other matters to bear in mind before making the switch, there are some positives and some negatives. Here are a few…

Bigger audience of supporters to market to?

Collecting someone’s consent to send them marketing, obtaining a clear unambiguous tick (or check in a box) is undoubtedly a clear indication they would like to hear from you in future. However, asking people to take a positive action is recognised as negatively impacting on the volume of people you can communicate with. Hence why many commercial organisations choose to use the commercial soft opt-in.

Opt-out / opt-in confusion?

Relying on the soft opt-in means you can provide people with the ability to opt-out at the time they provide their contact details. This immediately raises a consideration: have people become expectant of being asked opt-in? If they have, there could be adverse consequences of switching to an opt-out.

For example, if you switch:

■ Will people accidentally tick the box, thinking they are opting in, but in effect be opting out?

■ Conversely, will people who don’t want to receive marketing, fail to tick the opt-out box (assuming it’s an opt-in) and inadvertently be saying ‘yes that’s okay’?

I’d advise carefully crafting the wording, to try and avoid confusion.

Clearer opt-out for ALL channels?

At the moment, organisations are presented with a dilemma if they collect consent for email (and/or text) marketing, but rely on legitimate interests for post and telemarking. A statement which mixes opt-ins and opt-outs can create a muddle for people.

We’ve noticed some charities have got round this by including a statement explaining they will communicate by post and telephone, with clear contact details for how to change preferences (i.e. if they want to object).

Being able to provide an opt-out for ALL marketing channels, could prove simpler and clearer. But remember you wouldn’t be able to rely on the charitable purpose soft opt-in to send communications about commercial activities.

Can your CRM system handle a switch from consent?

Switching opt-ins to opt-out could present a technical challenge. You’ll need to be able to clearly distinguish on your database between:

■ those who previously provided their consent

■ those who were asked for consent but declined – or have subsequently opted-out, and

■ moving forward, those who were given a soft opt-in statement and have simply not opted out.

■ where relevant the distinction between the commercial soft opt-in and the charitable purposes soft opt-in

When you gather new data via the soft opt-in, you’ll need to make sure it’s mapped correctly to your CRM. Some CRM systems may not have more than two statuses for each marketing channel, i.e. they may have been built with just ‘consent’ or ‘no consent’ and therefore may have no way to record a legitimate interest for direct marketing.

In summary, the charitable purpose soft opt-in provides a levelling of the playing field between commercial businesses and charities. It definitely presents an opportunity some will want to take advantage of, but it will take some careful planning.