Government urged to give charities marketing ‘soft opt-in’

December 2024

Nineteen major UK charities have joined the Data & Marketing Association (DMA) in urging the  Government to extend the so-called ‘soft opt-in’ for email marketing to not-for-profits.

This was one of the proposals in the previous Government’s Digital Information and Data Protection Bill (which died when the General Election was called), but it has not been carried over into the first draft the Labour Government’s Data (Use & Access) Bill (DUA).

The DMA estimates extending the soft opt-in to charities would increase annual donations in the UK by £290 million. In its letter to the Secretary of State for Science, Innovation and Technology the DMA says; “The omission of the soft opt-in will prevent charities from being able to communicate to donors in the same way as businesses can. As representatives of both corporate entities and charitable organisations, it is unclear to the DMA why charities should be at a disadvantage in this regard.”

What is the soft opt-in?

There seems to be a common misconception consent is always needed for email marketing to ‘individual subscribers’ (i.e. B2C – business to consumer marketing), but there’s always been an exemption available in a commercial context, known as the soft opt-in. This can be relied upon for marketing emails 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);
  • You provide the ability to opt-out in every communication.

This strict criteria, in particular the first point, means charities are very restricted and can only technically use this exemption in a commercial context. For example, it could be used when someone purchases a product from an online charity shop. Charities are not permitted to use supporter data gathered via the soft opt-in for fundraising purposes. For more information see PECR Regulation 22 and the ICO’s Guide to PECR.

What changes could be ushered in?

As said, at the moment the DUA Bill does not include any changes to the Privacy & Electronic Communications Regulations (PECR) relating to the soft opt-in. But if lobbying is successful, we could potentially see the revival of previous proposals. For example, the previous Government’s Bill included provisions for the soft opt-in to be used when direct marketing was:

  • solely for the purpose of furthering charitable, political or other non-commercial objectives
  • where contact details have been obtained during the course of a recipient expressing an interest or providing support, AND
  • where the recipient is given a clear and simple means of objecting to direct marketing at the point their details were collected, and in every subsequent communication.

What do charities need to consider?

If, and it’s a big IF, the soft opt-in rules are changed it would be hugely significant for the charity sector. It will give organisations a choice; stick with consent or start collecting new data using the soft opt-in. Of course, the pros and cons, will need to be weighed up. It would raise some important questions including (but not limited to);

  • Will your CRM system be able to store multiple permission statuses for legacy data alongside new data gathered under the soft opt-in?
  • Will people find it confusing?
  • Will people tick the box, thinking they’re opting in, when actually they’ll be opting out?

What I hope is charities are given this choice, and I wish the DMA the best of luck in getting this amendment to PECR into the DUA Bill. It has always felt unbalanced that the commercial sector can benefit from this exemption, but charities can’t.