In January 2025, an amendment to the Data (Use and Access) Bill (Bill) was presented to the House of Lords proposing to extend the 'soft opt-in' exemption for consent for email and text marketing to charities and not-for-profit. This follows a call to action from the Data & Marketing Association (DMA), who, alongside 19 major charities, urged the UK government to extend the soft-opt in exemption to charities towards the end of last year. The Bill, which is now in the report stage in the House of Commons, aligns charity communication with donors to the same practices that businesses have used to engage with customers since 2003, and enables charities to connect with supporters more effectively.
How soft opt-in works
Under the Privacy and Electronic Communications (EC Directive) Regulations 2003 (PECR 2003), all organisations are required to obtain explicit consent from individuals before sending them electronic marketing communications (including email, text and telephone marketing).
The PECR 2003 also provide an exemption to this requirement called ''soft opt-in'', which lets organisations send such marketing communications to individuals without their explicit consent, provided certain conditions are met. These conditions are as follows:
- The individual's contact details must be collected during the course of a sale (or negotiations for a sale) of a product or service;
- Marketing communications must only promote the organisation's own similar products and services, not those of third parties; and
- The recipient must be given the opportunity to opt-out of marketing at the point of data collection and in every subsequent communication.
Issues with soft opt-in for charities
While charities can rely on the soft opt-in exemption in the PECR 2003 in the same way private organisations can in the course of selling a product or service (for example, selling merchandise on an online shop), the conditions that apply to soft opt-in limits the abilities of charities to rely upon soft opt-in for other purposes.
As the soft opt-in applies only in relation to information collected in the course of a sale, and marketing for the promotion, of products and services, it cannot be relied upon where contact details are collected in the course of fundraising or to send marketing communications to supporters about fundraising activities. For example, if someone makes a donation to a charity, the charity cannot rely upon soft opt-in to keep that person up to date with future fundraising campaigns or the charity's activities.
What the Bill proposes
This change will allow charities to use the soft opt-in for direct marketing when:
- The direct marketing is solely for the purpose of furthering a charitable objective;
- Contact details have been obtained during the course of a recipient expressing an interest in or offering support or providing support for the furtherance of that objective or a similar objective; and
- The recipient is given the chance to opt-out of direct marketing at the point of collection and in every subsequent communication.
This means charities can use the soft opt in exemption with far more flexibility and their ability to rely on the soft opt-in exemption is now in line with how commercial organisations that have benefited from it since 2003.
Charities can send marketing emails to a wider pool of individuals who have shown interest in their cause or have otherwise provided support, without needing opt-in consent. This change is expected to significantly enhance the ability of charities to engage with their supporters, fostering stronger relationships and improving fundraising efforts. By aligning the marketing capabilities of charities with those of commercial entities, the amendment acknowledges the vital role that charities play in society and supports their mission-driven activities.
Previous proposals to extend soft opt-in to non-profits
Proposals to extend the soft opt-in to charities are not entirely new and were previously proposed under the Digital Information and Data Protection Bill (DIDP Bill). One key difference between the proposals under the Bill and the DIDP Bill is that the DIDP Bill also proposed extending soft opt-in for political objectives. The DIDP Bill, however, did not carry over following the last General Election.
Next steps
Charities that intend to rely upon the soft opt-in exemption for direct marketing must ensure they do so in line with the conditions. In particular, they must ensure the recipient is given the opportunity to opt-out both at the collection stage and in every subsequent communication. Charities will need to think about how they transition for current marketing consents to soft opt-in, noting that the soft opt-in will be available only for new collections of data.
Charities will also need to ensure that they rely upon soft opt-in only for marketing communications that are "solely" for the purpose of furthering a charitable objective. If the purpose is mixed, then the soft opt-in will not be available.
Charities will also need to update their privacy notices to reflect the fact that they are relying upon the soft opt-in exemption.
If you have any questions about the issues raised in this blog, please contact Martin Sloan or your usual Brodies contact.
