The Marketing Soft Opt-in – Pros and Cons

Consent is not always needed to send marketing emails (or text messages) to UK consumers. There’s an exemption for electronic marketing messages, which providing you can meet specific criteria allows businesses to provide people with an ‘opt-out’ instead. This is commonly (and rather ambiguously) known as the ‘soft opt-in’.

It has recently been confirmed the UK Data (Use & Access) Bill is set to pave the way to extend the use of the soft opt-in to charities. So I’ve taken a look at the advantages and disadvantages of adopting this approach. But first a little explainer of the rules…

The soft opt-in criteria

The exemption to consent under the Privacy and Electronic Communications Regulations (PECR) can currently be relied upon to send electronic marketing (e.g. emails and texts) 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).

Just a quick note: the rules 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

Plans to permit charity use of the soft opt-in

The current strict criteria, in particular needing to collect a person’s contact details in the context of a sale (or negotiations for a sale), has meant charities have to date been very restricted in its use. For example, only being able to use the soft opt-in if they have a commercial arm such as an online shop, but not for gathering data via non-commercial activities.

However an amendment has been made to the DUA Bill, which is set to allow charities to send electronic marketing messages, where ALL of the following conditions are met:

■ The sole purpose of the direct marketing is for the charity’s charitable purpose(s)
■ Contact details were collected when the individual a) expressed an interest in the charity’s purpose(s) or b) offered or provided support to further the charity’s purpose(s).
■ An opportunity to refuse or opt-out of the marketing is given at the point of collection, and in every subsequent communication.

Just to be clear this is not UK law yet – the DUA Bill is currently working its way through Parliament.

Weighing up the pros and cons of the soft opt-in

It isn’t necessarily a straight-forward step to switch from using consent and here are some some areas to consider (and there may well be others).

Back in 2017, DPN commissioned independent research into consumer attitudes when presented with a statement inviting them to opt-in (consent) or to opt-out to marketing (i.e. the soft opt-in). While this was some time ago, we believe our findings still have value and have referenced them where relevant.

More people 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 adopt the soft opt-in (an ‘opt-out’) approach, whenever they are permitted.

It’s worth bearing in mind if people didn’t really want to hear from you by email or text, i.e. they ‘missed’ the opt-out box, they could be more likely to quickly unsubscribe. Which neatly brings me onto…

Potential for opt-out 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’?

Our research showed when people were presented with an opt-out box, it lead to confusion about whether to tick it, or not. Our findings showed, even in a test environment, people had a tendency not to read statements carefully.

Attitudes to opt-out

Our research also showed when asked for their opinions, a significant majority disliked being presented with an opt-out. Some people viewed it as misleading or an attempt to try and ‘trick’ people into receiving marketing. There was a much more positive reaction to opt-in statements. Here’s just an illustration of the type of comments people gave in reaction to an opt-out box:

“This is a way of fooling the user to not tick the boxes and get loads of junk sent to them”
“Everyone knows doing it this way is to catch stupid people out.”

Could it be simpler to take an opt-out approach 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. Giving people a statement which mixes opt-ins and opt-outs really does create a muddle for people.

We’ve noticed the way some charities have got round this is to state they will communicate by post and telephone, and then provide people with contact details for how to change their preferences (i.e. if they want to object).

A potential advantage of being able to provide an opt-out for email (and/or text) marketing messages is it could create the ability to provide more clarity and transparency. For example, statements could be amended to provide clear opt-outs for all channels.

Can your CRM handle a switch from consent?

If you’re considering switching to the soft-opt-in, be mindful this 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.

Some CRM systems may not have more than two statuses for each marketing channel.  In addition, when you gather new data via the soft opt-in (opt-out), you’ll need to make sure it’s mapped correctly to your CRM.

Legitimate interests, transparency & privacy notices

Relying on the soft opt-in (an ‘opt-out’) means the lawful basis for processing under UK GDPR will not be consent, it will be legitimate interests. Therefore it would be wise to conduct and document a Legitimate Interests Assessment (LIA). You’ll also need to make sure relevant privacy notices are updated to reflect this, clearly calling out where marketing is carried out based on legitimate interests.

At DPN we wholly support the planned changes in the DUA Bill to level the playing field between commercial businesses and charities. Giving charities a choice to rely on the soft opt-in exemption, should they wish to. However, we’d just caution the switch from consent shouldn’t be taken lightly. In my opinion, any change to using an opt-out will need to be made very clear to people.