Plans to extend marketing ‘soft opt-in’ to charities

June 2022

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

In a move welcomed by the Institute of Fundraising, the Government has confirmed it intends to extend the use of the ‘soft-opt in’ for electronic marketing to charities under UK data reform plans.

So, what is the ‘soft opt-in’, how does it currently work, and how might it work for charities?

What’s the ‘soft-opt-in’?

The laws governing electronic marketing are covered in the UK’s Privacy and Electronic Communications Regulations (PECR) which cover email, SMS and telemarketing.

Under PECR you need to have consent to send electronic marketing messages (e.g. email or SMS) to what are termed ‘individual subscribers’. These are people who personally subscribe to their email/SMS service provider (often referred to as B2C marketing).

But you don’t always legally need consent…

There’s an exemption under PECR for electronic marketing to existing customers. This is commonly known as the ‘soft opt-in’.  An ambiguous term as it permits the use of an ‘opt-out’!

Currently only available to commercial businesses, there are specific rules you need to follow when relying on this exemption:

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

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

Charities use of soft opt-in

The devil will be in the detail about how this might be applied in practice for charities. Daniel Fluskey, Director of Policy and Communications at the Institute of Fundraising points out:

“Charitable donations don’t normally count as a sale or transaction in law as it’s a one way transfer of money with nothing bought or expected in return. So, if what we get is a narrow application of this, then making a donation on a charity website wouldn’t count for the soft opt-in. But a supporter buying something (a ticket for a concert, a product bought through an online charity shop, or someone buying a charitable service, etc) would be able contactable via soft opt-in to offer them that similar product in the future.

Perhaps though, if a wide application is applied then donations could be counted for the soft opt-in to work. This would of course be a bit more of a game-changer and is one of the areas that we’ll have to see the wording of the legislation and accompanying guidance to see where it lands.”

It’s worth noting the rules on consent and the ‘soft opt-in’ under PECR do not apply to ‘corporate subscribers’. A corporate subscriber is where the organisation (as opposed to the individual) has subscribed to the email/SMS service. (Commonly referred to as B2B marketing).

To quote the ICO on this, here’s an extract the draft Direct Marketing Code of Practice:

“The PECR rules on marketing by electronic mail (e.g. email and text messages) do not apply to corporate subscribers. This means you can send B2B direct marketing emails or texts to any corporate body. However, you must still say who you are and give a valid address for the recipients to unsubscribe from your emails.”

You do however 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.

Are changes also on the cards for political campaigning?

In another potential change to marketing rules, the Government says it will be considering whether political communications should remain within the scope of PECR’s direct marketing rules (or be excluded).

It also intends to extend the soft opt-in to political parties and elected representatives. This could allow for contact with individuals who have previously shown an interest in the activities of the party without their explicit consent.

The examples given in the Government response to the data reform consultation include – ‘attending a conference’ or ‘making a donation’. Is this a possible sign charities will also be able to use the ‘soft opt-in’ when individuals make donations?

To find out more detail about the data reform plans, we’ve published key highlights: UK data reform plans revealed.

Nothing is certain yet. As the legislation progresses it will be subject to parliamentary scrutiny and possible changes.