What could the marketing ‘soft opt-in’ mean for charities?

April 2023

Exemption to consent may be extended to not-for-profits

There seems to be a misconception consent is always needed for email marketing. It’s a point I’m often asked about. While consent might be seen as the most upfront and open way of collecting marketing permissions, it isn’t always legally required.

For business to consumer marketing (B2C) by electronic mail, there’s always been an exemption to consent available for commercial use, if specific conditions are met.

This exemption is known as the ‘soft opt-in’. A confusing term, as it essentially allows businesses to offer people the chance to opt-out. This exemption is why you might have come across opt-out boxes when, for example, purchasing a product online.

However, charities have been restricted to using this exemption for their commercial activities only. For example, if they have an online shop, and they’re not permitted to use supporter data gathered via the soft opt-in for fundraising purposes.

But the latest draft of the UK’s Data Protection and Digital Information Bill confirms plans to expand the use of the ‘soft opt in’ for not-for-profits and political campaigning.

What’s the ‘soft-opt-in’?

The laws governing marketing by electronic mail are covered in the UK’s Privacy and Electronic Communications Regulations (PECR).

Under PECR you need consent to send electronic marketing messages (for example by email and text) to what are termed ‘individual subscribers’, unless you can meet the conditions of the exemption. ‘Individual subscribers’ are people who personally subscribe to their email/SMS service provider.

The ‘soft opt-in’ exemption, can currently be used if the following criteria can be met:

  • 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); AND
  • You provide the ability to opt-out in every communication.

This strict criteria, in particular the first point, means this exemption has largely only been used by commercial businesses.

For more information see PECR Regulation 22 and the ICO’s Guide to PECR.

What might change?

It’s proposed the soft opt-in exemption will be extended to non-commercial organisations and purposes. The latest draft of the Bill sets out this could be used when the direct marketing is:

  • 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?

There will be choice to make as to whether to stick with consent as the lawful basis, or start collecting new data using the soft opt-in. You’ll need to weigh up the pros and cons.

It’s crucial to be aware this will only be possible to use moving forward. It isn’t an opportunity to re-contact people who didn’t give you consent, where you don’t have adequate records or where people have opted out in the past.

It raises some important questions. 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, having got used to opting in? Will people tick the box, thinking they’re opting in, when actually they’ll be opting out?

A positive change

The proposed changes are supported by the Chartered Institute of Fundraising. Daniel Fluskey, Director of Policy and Communications says; “We have long advocated for the soft opt-in to be extended so that it could be used by charities and very much welcome the development to bring this in through the new legislation. Charities should have the same opportunities to fundraise as businesses have to market their services and products. But more importantly than that, charities and supporters can benefit from this more flexible approach to email marketing by providing an opportunity to develop a relationship or encourage people to support a charity where they have already expressed an interest in doing so.”

Claire Robson, GOSH Charity Data Protection Officer, is also supportive of the move; “Here at GOSH Charity, we welcome the proposed change in law that will enable charities to decide whether they want to apply the soft opt-in for marketing communications. However, we also recognise this isn’t a silver bullet and must be done with thought and care, ensuring our donors and supporters hear from us in the ways that work best for them.”

What about B2B marketing?

The rules on consent and the ‘soft opt-in’ under PECR do not apply to business-to-business marketing by electronic mail. Marketing to what are termed ‘corporate subscribers’. ICO guidance on this can be found here.

There are no plans to change this, so it will remain a choice for B2B communications whether to collect consent or not. However, we do need to be mindful sole traders and some partnerships fall under the definition of ‘individual subscribers’, so would fall under the consent / soft opt-in rules for B2C marketing.

Here at DPN we also welcome plans to extend the soft opt-in to not-for-profits, albeit we appreciate this move is likely to have been largely driven by aims to permit this for political campaigning purposes. We would just recommend charities carefully think through any changes to current practices.