Is it about to become easier for charities to send fundraising emails?
The Data (Use and Access) Act 2025 (DUAA) has introduced an update to the electronic marketing rules contained in the Privacy and Electronic Communications Regulations (PECR) which will allow charities to send electronic mail (e.g. emails, texts) for fundraising purposes without consent in certain circumstances. This is permitted by a new provision expected to come into effect in a few months' time that extends the soft opt-in exemption.
What is the soft opt-in exemption?
The soft opt-in exemption allows organisations to send direct marketing by electronic mail to individuals without prior consent provided that certain conditions are met. Notably, the recipient's contact details must have been collected in the course of a sale or negotiations for a sale, the communication must relate to similar products or services, and the recipient must have been given a clear opt out when their details were originally collected and in every subsequent message.
Historically, charities have faced difficulties in relying on this exemption for direct marketing (e.g. fundraising) communications because it is designed for organisations marketing products and services. The DUAA expands the scope of the soft opt-in exemption, enabling charities to use it under specific conditions (as outlined below). Charities should note that 'direct marketing' is broadly defined to include fundraising.
The soft opt-in exemption for charities
- Eligibility: Charities will be able to rely on the soft opt-in exemption to send direct marketing electronic mail (e.g. email), provided the sole purpose of the message is to further one or more of the charity's charitable purposes. In addition, the charity must have obtained the contact details in the course of the recipient (i) expressing an interest in the charity's charitable purposes or (ii) offering or providing support to further those purposes.
- Clear opt-out mechanisms: The recipient must be given a simple means of refusing the use of their contact details for direct marketing by the charity at the time the details were initially collected and if they did not initially opt-out, at the time of each subsequent communication.
- Limitations: The exemption applies only to individuals who have directly interacted with the charity. Purchased or third-party contact lists remain outside the scope of this exemption from the consent requirement.
Practical implications
- Updated guidance expected: The Information Commissioner's Office (ICO) is expected to release guidance on this new provision in the next month or two. A public consultation on this guidance is anticipated. We hope that the guidance will provide clarity on the aspects of the new provision that are open to interpretation.
- Non-retrospective application: According to the Fundraising Regulator, the new soft opt-in cannot be applied retrospectively i.e. it will not apply to individuals already listed in a charity’s database. It will be interesting to see if the ICO also takes this view or whether there is some flexibility here.
- Record keeping: Charities will need to ensure they have accurate records of why the soft opt-in exemption is applicable when relying on it.
- Ongoing UK GDPR compliance: The requirements of the UK General Data Protection Regulation (UK GDPR) will continue to apply to all direct marketing activities where personal data is processed.
Charities should keep an eye on forthcoming guidance and consider practical implementation of the soft opt-in exemption in order to navigate these changes effectively and continue to build strong relationships with their supporters.