Under the Privacy and Electronic Communications Regulations 2003 (PECR), private companies are allowed to send email marketing information when (for example) an individual pays for goods and does not expressly state that they do not want to receive marketing emails (normally by ticking a tick box on a webpage). This is known as the soft opt-in rule. Charities will now be able to benefit from the rule to send marketing material for fundraising or to promote their charitable purposes, following an amendment to PECR included in the Data (Use and Access) Act 2025, which was given Royal Assent earlier this year. It is expected that the change will come into effect in January 2026.

In its recent response to the Information Commissioner’s Office consultation on soft opt-in rules for charities, the Fundraising Regulator (FR) has confirmed that it agrees with the ICO’s guidance and welcomes the extension of the soft opt-in exemption for charities as a ‘welcome opportunity for individual charities to strengthen engagement with their supporters’, especially when so many organisations are facing critical financial pressures. 

However, the regulator specifically notes that it will likely investigate any potential misuse of the soft opt-in rules by charities and cautions charity trustees, staff and fundraisers to be vigilant when producing related fundraising materials. In particular, the FR highlights the need to comply with Rule 8.4.4 of the Code of Fundraising Practice, where charities must ‘be able to justify how often [they] contact people about fundraising, balancing the need to communicate with not bombarding people’. 

This rule change could provide an excellent opportunity to increase the reach of fundraising in the future, but this proposal must be treated with caution.  The ICO’s consultation guidance indicates that charities should distinguish between the soft opt-in for commercial activities (promotion of goods and services), as separate and distinct from the soft opt-in for promotion of their charitable purposes and fundraising activities. For example, if a charity wishes to send out an email requesting volunteers for an event under the charitable purposes soft opt-in, it should not include marketing for products and services under the banner of that email (unless of course, it had explicit consent to do so).

Whilst the new rule may well be beneficial to charities seeking to boost their income through the promotion of their activities, the guidance indicates that charities will need to take significant care when implementing the new rules, given that the charitable purpose opt-in will operate separately to the commercial activities opt-in. If someone has opted out of all direct email marketing, charities will not be able to use their personal information for any marketing relating to fundraising or charitable purposes. If someone exercises a specific opt-out from receiving marketing related to purposes or fundraising, charities should not then continue to send them material which includes fundraising information on the basis that they may have not opted out of receiving information relating to a charity’s commercial activities.  Equally, if you are using the commercial soft opt-in, you must only include information about similar products or services in any direct marketing and not include marketing material that furthers your charitable purposes.

Note that if you have already received someone’s explicit consent to receive email marketing about your charitable purposes, you can carry on sending such marketing using consent. 

Based on the information currently available, we recommend the following once the rule comes into force:

• Charities should update their privacy policies so that individuals understand what data processing will take place, including any processing for charitable or fundraising purposes, and why the charity can legally justify that processing.
• All staff involved in fundraising and marketing are trained on what this change means for their organisation and the individuals receiving communications.
• Marketing and fundraising teams introduce clear internal policies for the approval of fundraising materials, especially email materials, and understand the proposed changes.
• You should consider having separate lists within your customer databases for those who may benefit from the charitable purpose soft opt-in and those who have consented to receive such marketing; you should also keep records of those who have opted out of receiving emails from either commercial or charitable purposes.
• Be mindful not to include fundraising materials in general updates/communications to interested parties, as someone may wish to receive updates on a charity’s work,  but may not wish to receive fundraising material.
• You should continue to offer people a general opt-out from receiving all direct marketing emails – if someone exercises this right, you must stop using their personal information for direct marketing purposes.

If you would like more information about this response and what this could mean for your fundraising operations, please contact me.