Will change to laws on charity marketing boost fundraising?

The Privacy and Electronic Communications Regulations 2003 (PECR) contain a general rule prohibiting the sending of unsolicited marketing emails and text messages without the recipient’s explicit consent. 

Commercial organisations have long benefited from an exception to this general rule, which allows them to send unsolicited marketing communications to individuals who have supplied their contact details as part of an earlier purchase/negotiation (the so-called ‘soft opt-in’). 

The Data (Use and Access) Act 2025 (DUAA) is set to extend the soft opt-in exception to charities. Based on what the data protection regulator has said, we expect that it will start applying to charities no later than spring 2026. 

What's the charity soft opt-in?

The soft opt-in will allow a charity to send unsolicited marketing communications to individuals who have previously shared their contact details for specified purposes, ie: 

• When expressing an interest in the charity’s charitable purposes, or
• When offering/providing support to the charity

Anyone wishing to send marketing communications under the auspices of the soft opt-in must also ensure that: 

• The sole purpose of the direct marketing is to further one or more of the charity’s charitable purposes
• The recipient of the marketing communication is given an easy way to refuse the use of their contact details for marketing purposes. 

The rules apply to emails and texts but not telephone calls.

Will this help charity fundraising efforts? 

Many charities seem to think so. The soft opt-in fell in and out of DUAA as it went through the Parliamentary process. Its eventual inclusion was partly down to a determined campaign led by the Data & Marketing Association (DMA) and supported by charities such as Oxfam, Water Aid and the British Heart Foundation. The DMA wrote an open letter to the Secretary of State claiming that “extending the soft opt-in to charities would increase annual donations in the UK by £290 million.” 

A note of caution. The wording of the legislation suggests that charities won't be able to rely on the soft opt-in to start sending marketing communications to contacts obtained before the relevant provisions in DUAA start to apply. It'll be interesting to see if the Information Commissioner’s Office's (ICO) updated direct marketing guidance clarifies this point. If charities aren't permitted to take advantage of the soft opt-in to send marketing communications to their existing contacts, it'll reduce the immediate usefulness of the new regime. Moreover, DUAA also increases the level of fines for breaches of the PECR increasing the maximum potential fine from £500,000 to £17.5m, or 4% of an organisation’s global turnover. The ICO also has new powers to issue warnings and reprimands. 

Practical tips

• When obtaining contact details, give people a simple means of saying no to direct marketing
• Any marketing communication should include a simple means to opt out
• Ensure you have robust systems for tracking who has opted out of receiving marketing communications

Comment

While the soft opt-in is an opportunity for charities to boost their fundraising by expanding the scope of their marketing communications, it’s important to do so in a way that complies with the updated PECR and preserves the trust of the charity’s audience. If you're thinking of updating your internal processes and external communications to take advantage of the soft opt-in, it may be worth seeking legal advice on the best way of doing this. It’s also worth keeping an eye out for updated guidance from the ICO to see how they interpret (and intend to apply) the charity soft opt-in. 

Further sources of information

• The ICO is currently running a consultation on the soft opt in between 16 October and 27 November. It's keen to hear from charities “so we can make sure our guidance is clear, practical and supports charities in the best way possible to make the most of these changes”
• The Fundraising Regulator has published some useful information on the new rules

If you have any questions about the soft opt-in, please contact Paul Knight.