Big change as marketing ‘soft opt-in’ set to be extended to charities

In a hugely significant move the Government has adopted an amendment to the Data (Use and Access) Bill (DUA), which paves the way for charities to be able to benefit from the ‘soft opt in’ exemption to consent for email and text marketing. This marks a clear move to level the playing field between charities and commercial businesses.

In December nineteen major UK charities joined the Data & Marketing Association (DMA) in urging the Government to make this change. The DMA estimates extending the soft opt-in to charities will increase annual donations in the UK by £290 million.

What is the soft opt-in?

There’s a common misconception consent is always needed for email marketing to ‘individual subscribers’ (i.e. B2C – business to consumer marketing). There’s always been an exemption available to commercial businesses, commonly referred to as the ‘soft opt-in’. Under the Privacy and Electronic Communications Regulations (PECR) this can be relied upon for marketing 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)

This strict criteria, in particular the first point, has meant charities have been very restricted and have only technically been able to use this exemption in a commercial context. For example, when someone purchased a product from an online charity shop. But charities have not been permitted to use supporter data gathered via the soft opt-in for fundraising purposes.

However, the DUA Bill has now been amended to include a section on ‘Use of electronic mail for direct marketing by charities’. This states:

A charity may send or instigate the sending of electronic mail for the purposes of direct marketing where—

(a) the sole purpose of the direct marketing is to further one or more of the charity’s charitable purposes;
(b) the charity obtained the contact details of the recipient of the electronic mail in the course of the recipient—

(i) expressing an interest in one or more of the purposes that were the charity’s charitable purposes at that time; or
(ii) offering or providing support to further one or more of those purposes; and

(c) the recipient has been given a simple means of refusing (free of charge except for the costs of the transmission of the refusal) the use of their contact details for the purposes of direct marketing by the charity, at the time that the details were initially collected, and, where the recipient did not initially refuse the use of the details, at the time of each subsequent communication.

What do charities need to consider?

The Bill is still progressing through Parliament, so it’s not law yet. But once passed it will give charities 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. This will 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 supporters find it confusing if you suddenly switch?
■ Will people tick a box, thinking they’re opting in, when actually they’ll be opting out?

We’ve written more about this here: The marketing soft opt-in – pros and cons

It has always felt unbalanced that the commercial sector has been able to benefit from this exemption to consent, but charities have not been able to. Here are DPN we’re delighted the lobbying of the DMA and Charities has paid off.