Consultation - our approach to the charitable purpose soft opt-in

The sections below explain our approach to the charitable purpose soft opt-in. This information is primarily aimed at charities, but we welcome input and feedback from anybody with an interest in this topic.

We know the charity sector is diverse, so we’re keen to hear about any points we might not have considered or where you’d find it helpful to have more detail. Your responses to our consultation questions will help us to update the relevant sections of our existing guidance. 

What terminology do we need to familiarise ourselves with? 

To distinguish clearly between the two types of soft opt-in, we will use the following terms in our guidance:

• The ‘commercial soft opt-in’ when referring to the rules in regulation 22(3).
• The ‘charitable purpose soft opt-in’ when referring to the new rules for charities in regulation 22(3A).

What requirements do we need to meet to use the charitable purpose soft opt-in?

Charities won’t have to use the charitable purpose soft opt-in. You might prefer to continue obtaining people’s consent. However, if you want to use the charitable purpose soft opt-in instead of consent, you must meet all its requirements: 

• You’re a charity.
• The sole purpose of your direct marketing is to further one or more of your charitable purposes.
• You obtained the contact details directly from the recipient.
• You did so in the course of the recipient:
  • expressing an interest in one or more of your charitable purposes; or
  • offering or providing support to further one or more of your charitable purposes.
• You gave an opportunity to refuse or opt out when you collected the details.
• You give an opportunity to refuse or opt out in every subsequent communication.

We explain these requirements in more detail below.

You’re a charity

Only charities can use the charitable purpose soft opt-in. You can find the definition of a charity in the relevant legislation for each UK nation.

Only an organisation established solely for a charitable purpose can use the charitable purpose soft opt-in. This means that your charitable entity must gather people’s contact details directly for you to use the charitable purpose soft opt-in. 

Relevant provisions in legislation:

The sole purpose of your direct marketing is to further one or more of your charitable purposes

You must ensure that the sole purpose of any marketing you send using the charitable purpose soft opt-in is to further your charitable purposes.
 
The DUAA refers to the definitions of ‘charitable purpose’ in the Charities Act 2011 (and equivalent legislation in Scotland and Northern Ireland). This provides a non-exhaustive list of examples which, if done for the public benefit, can be considered charitable purposes.

Furthering your charitable purpose can include:

• requesting donations, including financial contributions and donations of clothes, food or other items where required for your charitable purpose;
• requesting volunteers to help with your charitable purpose; and
• providing information about your charity’s activities, including the work you do and the services you provide.

If you’re using the charitable purpose soft opt-in for direct marketing, you must only do it to further your own charitable purposes. This means you must not use it for marketing third-party organisations, including other charities.

You must not use the charitable purpose soft opt-in for direct marketing about your charity’s commercial activities, such as selling products or services. If you want to send electronic mail marketing about these things, you may be able to use either consent or the commercial soft opt-in instead. 

You can find out more about commercial soft opt-in in our guidance on direct marketing using electronic mail.

For electronic marketing messages using one type of soft opt-in, you must not include marketing material that is permitted by the other version of soft opt-in. You must send these separately. For example, if you send an email requesting volunteers for an event under the charitable purposes soft opt-in, you must not include marketing for products and services.

Relevant provisions in legislation:

You obtained the contact details directly from the recipient

This works in the same way as the equivalent requirement in the commercial soft opt-in. We will use our existing guidance to explain how this works. 

Specifically, you must obtain the contact details directly from the person you want to send the marketing to. If someone else obtains the contact details, you must not use the charitable purpose soft opt-in. 

For example, there is no such thing as a third-party marketing list that is ‘soft opt-in compliant’. Also, personal information collected by your charity’s trading subsidiaries or through other third-party platforms will not satisfy this requirement.

In the course of the recipient expressing an interest in one or more of your charitable purposes

If someone actively engages with your charity, they’re likely to be ‘expressing an interest’. For example:

• signing up to your charity’s website;
• signing up to your charity’s newsletter;
• requesting information about your charitable purposes; or
• requesting information about events your charity is running or the services you offer.

Expressing an interest isn’t limited to those who want to support your charity. People who access your charity’s services are also expressing an interest in your charitable purposes. This means you may also be able to use the charitable purpose soft opt-in to send electronic mail marketing to those who access your services. 

However, you must consider whether it is appropriate to send electronic mail marketing. In some cases, it may not be appropriate to rely on the soft opt-in. For example, if someone accesses a charity’s crisis service, sending them direct marketing mail afterwards could result in harm. For more information, see our section on when it’s not appropriate to use the charitable purpose soft opt-in.

You must only collect a person’s contact details ‘in the course of’ them expressing an interest. It’s not enough for you to obtain contact details directly through one interaction with a person who then separately expresses an interest in your charitable purposes. For example, you must not use information you’ve already collected because you notice that the person ‘likes’ one of your social media posts. 

In the course of the recipient offering or providing support to further one or more of your charitable purposes

‘Offering or providing support’ includes situations where the person:

• donates to your charity (eg by giving money or unwanted clothes); or
• volunteers to help your charity (eg by running stalls at your fundraising events).

Some charities may carry out commercial activities, such as selling second-hand items. Someone buying these would not be considered as offering or providing support to further your charitable purpose because there may be other reasons for them to buy the items. For example, the person may just like the item or may be buying from a charity for financial reasons.

However, in these situations, you may instead ask people for their consent for you to send them electronic mail marketing about your charitable purposes. 

You may also choose to use the commercial soft opt-in to market similar products or services to the recipient if you meet all the requirements. However, you must not include marketing material that furthers your charitable purposes if you’re using the commercial soft opt-in. With the commercial soft opt-in, you must only include information about similar products or services.

You gave an opportunity to refuse or opt out when you collected the details and give this opportunity in every subsequent communication

The requirements here are the same as for the commercial soft opt-in. We already have guidance explaining them, and we’ll use the same guidance for the charitable purpose soft opt-in.

In summary, there are two stages to consider:

• You must provide an opportunity people to refuse or opt out when you collect their contact details.
• You must give them an opportunity to refuse or opt out in every subsequent communication. 

When offering an opt-out in subsequent communications, you should give people the opportunity to contact your charity directly to amend their marketing preferences. For example, you should give people the option to reply directly to the marketing message, or to click on a clear ‘unsubscribe’ link within the message. 
 
The Fundraising Regulator runs the Fundraising Preference Service. This allows people to end contact with registered charities in England, Wales and Northern Ireland that they no longer want to hear from. You could also tell people about this service within your marketing messages. However, simply telling people about this service is not enough to satisfy the requirements to provide opportunities to refuse or opt out at the time you collect the contact details and in every subsequent communication.

People may be able to use the Fundraising Preference Service to exercise their separate right to object. If someone does this, you must stop using their personal information for direct marketing purposes. You have no grounds to refuse. For more information, see the section below about other data protection responsibilities and our guidance about the right to object.

When is it inappropriate to use the charitable purpose soft opt-in?

Some charities will find using the charitable purpose soft opt-in a good way to send electronic mail marketing to people, but it won’t be appropriate in all circumstances. 

The nature of the charitable purpose soft opt-in is that people have to actively choose to opt out. This may mean that some people unintentionally ‘agree’ to receive electronic mail marketing from you. 

Even if you meet all the requirements in regulation 22(3A), there may be some situations where it’s still not appropriate to send electronic mail marketing. For example, if someone accesses your charity’s crisis intervention service, subsequently sending them direct marketing could result in harm.

Remember, you must have a UK GDPR lawful basis when processing people’s personal information. It’s likely you’ll use legitimate interests. When using this lawful basis to send direct marketing, you must ensure that sending it doesn’t unduly affect the recipient’s rights and freedoms. 

To help with this, you should conduct a legitimate interests assessment. This is a light-touch risk assessment based on the specific context and circumstances of processing people’s personal information. It encourages you to ask yourself the right questions about your processing and objectively consider what people’s reasonable expectations are and any impact your processing may have on them.
 
The circumstances will differ depending on: 

• the nature of your charity;
• who you plan to send electronic mail marketing to; and
• their individual situations. 

Generally, if receiving direct marketing might put someone off seeking help from your charity, the charitable purpose soft opt-in would not be appropriate.

To ensure your marketing is fair and lawful, you must avoid sending marketing if doing so could cause someone harm. For example, a person who has contacted a charity for help with domestic abuse could be at risk of harm if their partner saw emails from the charity. Where there is a risk of harm to a person, you will not be able to pass the balancing test of the legitimate interests assessment.