The Information Commissioner's Office has published its final guidance on the new charitable purposes soft opt-in, which came into force in February 2026. The guidance contains a number of welcome amendments from the draft guidance published last year, but charities will need to reviewthe ICO's guidance carefully and consider how it applies to the marketing activities they undertake. Charities seeking to utilise the charitable purposes soft opt-in will also need to implement changes to their websites and CRM systems, together with updates to internal policies. In this update we summarise the key points in the ICO's guidance and the steps charities should take to prepare.
Background
The charitable purposes soft opt-in was introduced under the Data (Use and Access) Act 2025, by way of an amendment to the Privacy and Electronic Communications (EC Directive) Regulations 2003, and mirrors the soft opt-in in the 2003 Regulations that already applies to marketing products and services.
The 2003 Regulations set out a general rule that electronic marketing to consumers requires prior consent. However, under the products and services soft opt-in, organisations that collect contact details in the course of a sale of products and services to consumers can send electronic marketing for similar products and services, provided that individuals are given the opportunity to opt out at the point of data collection.
As the soft opt-in applies only to the sale of products and services, it is not available to charities seeking to issue electronic marketing in relation to fundraising campaigns or their charitable activities.
The charitable purposes soft opt-in therefore extends this principle to marketing by charities to promote their charitable purposes. The charitable purposes soft opt-in can be engaged where contact details are obtained through the person expressing an interest in, or offering or providing support for, the charity's charitable purposes and the sole purpose of the direct marketing is to further the charity's charitable purposes.
The ICO's charitable purposes soft opt-in guidance
Following consultation, the ICO has made a number of amendments to its guidance. These have been supplemented with examples of good and bad practice.
The key change is to move away from a siloed approach to the application of the products and services soft opt-in and the charitable purposes soft opt-in. Under the ICO's draft guidance, the ICO said that someone purchasing products or services from a charity could not be assumed to be supporting the charity's charitable purposes. This would mean that charities would need to maintain multiple soft opt-ins depending on how they engaged with individuals and could not cross market. It would also have led to complex forms on websites and paper as they would need to serve up different soft opt-ins depending on whether the individual was buying something or making a donation (or both).
In a move that will be welcomed by charities, the ICO has now changed its position. It now acknowledges that some purchases of goods and services may indicate support for the charity's charitable purposes.
The ICO gives the example of taking out membership, entering a charity raffle, or taking part in a fundraising event. The ICO also references the sale of t-shirts in an online store where it is clear that the proceeds will support the campaign or buying crafts from a charity that supports people with learning difficulties.
Conversely, the ICO says that the charitable purposes soft opt-in will not be available where:
- the purchase is incidental or made for convenience,
- the buyer has no meaningful engagement with the charity's mission; or
- the circumstances otherwise make it clear that the buyer is acting as an ordinary consumer rather than a supporter
Context will therefore be key in determining whether the purchase of particular products and services will enable a charity to engage the charitable purposes soft opt-in. Charities should review their activities carefully and determine whether they are in scope.
The ICO's change in approach also means that charities may be able to market those same products and services to supporters under the charitable purposes soft opt-in. For example, a charity could rely upon the charitable purposes soft opt-in to send electronic marketing about charity Christmas cards to supporters who had previously made a donation to that charity. That would not have been possible under the draft guidance.
While the purchase of some products and services may constitute support for a charity's charitable purposes, charities may still wish to continue also utilising the products and services soft opt-in if they might wish to market similar goods and services that would not constitute support for charitable purposes. However, doing so would require multiple opt-outs and will need clear language explaining how each opt-out will operate.
What else qualifies as expressing support or interest in charitable purposes?
The ICO's guidance also gives examples of other acts of interest in or support for a charity's charitable purposes. These include requesting updates or information about a charity's work, making donations or volunteering. However, the ICO gives the example of using the Wi-Fi in a community café as an example of an interaction that does not indicate an interest or support in the charitable purposes.
Individuals that use the services of a charity can in some cases be considered to be expressing support or interest in the charitable purposes, but this will depend on the services the charity is providing and how the individual engages with the charity.
Charities should be particularly careful with individuals who may be vulnerable or at risk of harm and consider whether it is appropriate to send marketing.
What else do we need to know about the charitable purposes soft opt-in?
As with the products and services opt-in, individuals must be given the opportunity to opt out of marketing at the point their contact details are collected and in each subsequent communication.
As the soft opt-in applies only where the charity collects the individual's contact details directly, it is not available where contact details are collected by a third party. The ICO says it is therefore not available where contact details are collected by third party online fundraising platforms or trading subsidiaries, which may impact on the ability of some charities to utilise the soft opt-in.
The sole purpose of the marketing must be to promote the charitable purposes of the charity (for example, seeking donations, asking for volunteers or providing information on campaigns and activities). As we explain above, this can include marketing the sale of certain products or services. Marketing under the soft opt-in cannot be used to promote other organisations, including other charities.
However, in another change from the draft guidance, charities can send a single marketing communication that promotes both the charity's charitable purposes and the sale or products and services, where the charity holds both the charitable purposes soft opt-in and the products and services opt-in (or opt in consent) from the recipient.
Finally, the charitable purposes soft opt-in is not retrospective. It came into force on 6 February 2026, but charities will only be able to rely upon it provided that they have gone through the steps set out above. This means that it cannot be utilised in relation to individuals that are already on your CRM system, though it can be applied when those individuals next engage with a charity.
What steps do we need to take to utilise the charitable purposes soft opt-in?
While the ICO's finalised guidance simplifies the interaction between the charitable purposes soft opt-in and the products and services soft opt-in, the ICO's guidance is complex and will require charities to consider carefully how it applies to their activities, products and services that they sell, and the marketing that they undertake. For some charities this will require a detailed analysis.
Charities will also need to update their websites and paper forms to build the soft opt-in into their processes when engaging with individuals. If a charity sells products and services that are not capable of engaging the charitable purposes soft opt-in then it may need to design processes that apply either the products and services soft opt-in or charitable purposes soft opt-in (or a marketing consent request) depending on how the individual is engaging with it.
Charities will also need to update their CRM systems to record the charitable purposes soft opt-in (distinct from the products and services opt-in) and implement appropriate back end updates to systems.
Finally, charities will need to update their privacy notices and implement internal policies and procedures to ensure that their marketing complies with the new rules. This includes ensuring that staff understand what marketing can be sent to individuals under each soft opt-in and when there may be a need to segregate mailing lists or the content of marketing messages.
More information
You can read the ICO's updated guidance on the ICO website.
If you would like to discuss how your organisation might be able to use the charitable purposes soft opt-in, the marketing you undertake and the steps you need to take, please get in touch with Martin Sloan or your usual Brodies contact.
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