What is the charitable purposes soft opt-in and how does it work?
Until recently, there were two main groups of people to whom charities could lawfully send electronic marketing communications:
- Group 1: People that consent to receiving electronic marketing communications (e.g. by ticking a box on a form); and
- Group 2: People that purchase products or services (e.g. from a charity’s online shop). In this context, the products and services soft opt-in would apply, provided the charity complies with the legal conditions set out in Regulation 22 of the Privacy and Electronic Communications Regulations 2003 (PECR).
The Data (Use and Access) Act 2025 (DUAA) created a new option – sending electronic marketing communications to:
- Group 3: people that express an interest in or provide support to a charity (e.g. signing up for a digital newsletter about the charity’s charitable activities or making an online donation). In this context, the charitable purposes soft opt-in would apply, provided the charity complies with the conditions set out in Regulation 22 of PECR.
The relevant parts of DUAA came into force on 5 February 2026, setting out the rules for charities to send electronic marketing communications to Group 3. Earlier this month, the Information Commissioner’s Office published some guidance about how to apply these rules in practice. This blog provides a summary, but the guidance is worth reviewing in full as it contains some useful examples. The bottom line is that charities wishing to take advantage of the charitable purposes soft opt-in should ensure that they can distinguish contacts that fall into Group 3 from contacts that fall into Groups 1 and 2. This will make it possible to design electronic marketing processes that comply with PECR and maintain the trust and goodwill of their supporters and contacts.
What does the guidance say?
To rely on the charitable purposes soft opt in, a charity must tick the following seven boxes:
1. Must be a charity (as defined in the relevant legislation).
In England, this is section 1(1) of the Charities Act 2011.
2. The charity must have obtained the person’s contact details on or after 5 February 2026
The charitable purposes soft opt-in only came into existence on this date. It cannot be applied retrospectively to contact details obtained before this date.
3. It must be the charity that obtains the person’s contact details.
As the guidance explains: “the soft opt-in doesn’t apply if someone else obtains the contact details for you, even if it’s another organisation closely connected to your charity, such as a trading subsidiary. There is no such thing as a third-party marketing list that is ‘soft opt-in compliant’.”
4. The person must have (a) expressed an interest in the charity’s charitable purposes or (b) offered or provided support to further the charity’s charitable purposes.
Working out whether the charity can tick this box will not always be straightforward and it is worth reviewing the ICO’s guidance carefully. On option (a), the guidance gives this example: “a person browses a wildlife charity’s website. The website has an online form for people to complete if they’d like to receive updates about the charity’s work to support endangered species. The person is interested in this and submits their contact details through the form.”
On option (b), the guidance says that: “some purchases from a charity are clearly understood by the buyer as a way of supporting your charitable purposes. This might include familiar activities such as taking out an annual membership, sponsoring an animal, entering a charity raffle or paying to take part in a charity’s fundraising event.” Incidental purchases, such as signing up for wifi at a charity-run café would not qualify.
5. The charity must give the person an opportunity to refuse email marketing when it collects the person’s contact details.
The guidance says “you must give people a simple way to opt out of your electronic mail marketing when you collect their contact details. An opt-out hidden within your privacy policy is not a simple way for people to refuse your electronic mail marketing. Your forms should include a prominent opt-out box. Staff taking down details verbally should specifically offer a choice of opting out. You must offer the opt-out when you collect the contact details. For example, including an opt-out in an order confirmation email does not meet the requirement to give people a way to opt out at the time you collect their details.”
6. The charity must ensure that the sole purpose of the marketing email is to further its charitable purposes.
The guidance says “you must only use this soft opt-in to further your own charitable purposes. You must not use it to promote other organisations, including other charities.”
7. The charity must include an opportunity to opt-out in every marketing email it sends.
The guidance says “you must make it simple for people to change their mind and opt out or unsubscribe. It should be possible for people to reply directly to your messages or to click a clear ‘unsubscribe’ link.”
Comment
If you would like any help with the matters raised in this blog, please get in touch with Paul Knight.
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