Introduction

The charity sector in Northern Ireland and the rest of the UK has long faced challenges in reaching out to supporters through direct marketing communications.  Unlike commercial organisations, most charities have been unable to utilise the 'soft opt-in' exemption, which allows businesses to send marketing emails without explicit consent. However, a recent amendment to the Data (Use and Access) Bill (DUA Bill) promises to level the playing field, enabling charities to benefit from this exemption and increase revenue generation. 

Current law

Under the current Privacy and Electronic Communications Regulations 2003 (PECR), organisations must obtain explicit consent to send electronic direct marketing communications.  The 'soft opt-in' exemption allows businesses to send marketing emails to existing customers without specific consent, provided the customer has not opted out.  This exemption is only available to commercial businesses with the result that charities have only been able to rely on the exemption in very limited circumstances, for example in relation to an online purchase from a charity shop. This in turn has limited the ability of charities to engage in direct marketing to supporters for fundraising purposes.

Proposed change

At the end of 2024, 19 charities joined the Data & Marketing Association (DMA) in issuing an open letter calling on the UK Government to extend the “soft opt in” to charities. In response, the Government has now included an amendment to the DUA Bill which will allow charities to send direct marketing communications to individuals who have expressed interest in or supported the charity, without needing explicit consent. The amendment requires that recipients are given a simple means to opt out at the time their details are collected and in every subsequent communication.

Benefit to charities going forward

The extension of the 'soft opt-in' exemption to charities is anticipated to have a significant positive impact on the sector.  The DMA estimates that this change could increase annual donations by £290m, providing much-needed financial support to charities, especially in the current economic climate.  

The Information Commissioner's Office (ICO) has expressed support for the amendment, with the Information Commissioner welcoming the extension as “it will help charities better communicate with people who support their purposes”.  However, he also cautioned that charities must carefully consider their UK GDPR obligations and the potential impact on vulnerable individuals.

Next steps

In conclusion, the proposed legislative change represents a significant step forward for the charity sector, offering new opportunities for engagement and fundraising.  Charities should begin preparing now to take full advantage of the 'soft opt-in' exemption once the DUA Bill is enacted.  From a data protection perspective charities should consider updating privacy notices, using legitimate interest assessments and reviewing record keeping processes to ensure that opt outs are accurately recorded to ensure compliance with the UK data protection legislation.