Planning ahead – preparing for the charitable purpose soft opt-in

What’s changing for charities?

PECR cover sending electronic mail to individual subscribers for direct marketing purposes. In general, you must have people’s consent to send them marketing by electronic mail. This includes emails, text messages and direct messaging on social media. See our guidance ‘What is electronic mail?’ for more details. 

Regulation 22(3) provides an exception to this consent requirement, commonly known as the ‘soft opt-in’ (although PECR don’t use this terminology).
  
This covers a situation where someone bought something from you recently, gave you their details, and did not opt out of marketing messages. They are probably happy to receive marketing from you about similar products or services, even if they haven’t specifically consented. However, you must give them a clear chance to opt out, both when you first collect their details and in every message you send them.

This exception only applies to marketing about your organisation’s similar products or services. It doesn’t apply to promoting aims and ideals (eg campaigning or fundraising). This means charities have historically been unable to use it to send direct marketing about your charitable purposes. Instead, you’ve needed to get people’s consent.

However, section 114 of the DUAA will add regulation 22(3A) to PECR, creating a new type of soft opt-in. This will specifically allow charities to send direct marketing by electronic mail about their charitable purposes without the recipient’s consent, as long as they meet a number of requirements.

When can we start to use the charitable purpose soft opt-in?

If you decide to start using the charitable purpose soft opt-in, you’ll be able to do so once the provision comes into force – we’re expecting this to be in January 2026. You must not use it to send your marketing before the provision takes effect.

Remember, if you already have someone’s consent to receive electronic mail marketing about your charitable purposes, you can carry on sending your marketing using consent. 

You must not use the charitable purpose soft opt-in to send electronic mail marketing to people whose contact details you’ve collected before it commences. Charities have historically relied on consent rather than soft opt-in for direct marketing purposes, and therefore you won’t have been offering an opt-out at the time you obtained people’s contact details. 

Even if your charity can demonstrate you met the regulation 22(3A) requirements pre-commencement, it is highly unlikely that your wider data protection obligations could be satisfied. For example, collecting details before the new rules take effect on a ‘just in case’ basis is unlikely to satisfy the legitimate interest balancing test or the fairness and data minimisation principles. If you haven’t updated your privacy notices, you’re also unlikely to satisfy the transparency principle.

What can we do to prepare for the charitable purpose soft opt-in?

Steps that you can take to prepare for the charitable purpose soft opt-in include reviewing your current processes for managing people’s direct marketing preferences.

If you intend to use the charitable purpose soft opt-in, you must update your privacy notice to tell people about how you will use their personal information. 

You should consider how you will explain the charitable purpose soft opt-in to someone when you first collect their contact details. You should also consider how you will explain to people why they are receiving marketing communications from your charity.

When it commences, you should keep separate lists of people who have given their consent to electronic mail marketing and people who will be sent it using the charitable purpose soft opt-in.

If applicable, you could also have a separate list for people who receive electronic mail marketing about your similar products and services using the commercial soft opt-in.

You could also train relevant members of staff about how to respond to queries and complaints from people about the electronic mail marketing they’re receiving.

What about our other data protection responsibilities?

While the charitable purpose soft opt-in will be part of PECR, you must also comply with both the UK GDPR and the DPA when processing personal information for direct marketing purposes. For example, a person’s email address identifies a unique user and distinguishes them from other users, which means it’s personal information.

You must make sure that what you want to do with people’s personal information is fair, lawful and transparent. You must also comply with people’s data protection rights (such as the right to object).

Fairness means not processing personal information in ways that people may find unexpected, misleading or detrimental. 

Transparency means being clear, open and honest about what you want to do with people’s personal information. For example, when you’re collecting people’s details, you must make it clear to them that you want to send them electronic mail marketing. People have the right to be informed about how you intend to use their personal information. 

People also have the absolute right to object to you using their personal information for direct marketing purposes. This includes using their personal information to send direct marketing by electronic mail. If someone exercises this right, you must stop using their personal information for direct marketing purposes. You have no grounds to refuse.

You should keep a ‘do not contact’ or suppression list to make sure that you don’t send electronic mail marketing to someone who has exercised this right. You must not send any direct marketing to a person who has used their right to object, even if they have not opted out of the charitable purpose soft opt-in. You can only send electronic mail marketing to them if they subsequently decide to consent to such marketing from you.