This follows the release of the ICO's own guidance in April this year: Guidance on direct marketing using electronic mail | ICO.
The charitable purposes soft opt-in and fundraising marketing guidance is a significant development for charities. It provides charities with guidance on how to contact supporters by email, text and similar electronic messages without first obtaining consent, provided that all of the legal conditions are met. This is intended to help charities build relationships with people who have already shown a genuine interest in their work, while still respecting the privacy and choice of individuals.
The Fundraising Regulator is the independent regulator of charitable fundraising in England, Wales and Northern Ireland, therefore a Scottish charity carrying out fundraising throughout the UK will be required to comply with the guidance. In Scotland, the Office of the Scottish Charity Regulator regulates fundraising activities. However, it will be good practice for Scottish charities to follow both the ICO and Fundraising Regulator's guidance, as well as the Code of Fundraising Practice.
What has changed?
Until recently, charities needed to rely on consent before they could send direct electronic marketing to individuals for fundraising purposes. The new charitable purposes soft opt-in, introduced through recent changes to the Privacy and Electronic Communications Regulations 2003, creates an additional route for charities to contact supporters. Where the requirements are satisfied, a charity may send electronic marketing about its charitable purposes and activities unless the recipient has opted out. This development is similar to the products and services soft opt-in for organisations sending electronic marketing to individuals to promote their products and services.
The rules sit alongside the UK GDPR and the Data Protection Act 2018, and charities need to ensure that personal data is processed lawfully.
When can charities rely on the soft opt-in?
A charity can rely on the charitable purposes soft opt-in only if it meets each of the relevant conditions.
- The organisation must be a charity recognised in law (in England, Wales, Northern Ireland or Scotland).
- The charity must have obtained the individual's contact details directly from that individual rather than a third party (for example, if an email address has been obtained from a professional fundraiser, then the charity cannot use the charitable purposes soft opt-in).
- The details must have been collected in circumstances where the person expressed an interest in, or offered or provided support for, the charity's charitable purposes. This includes a person making a donation, signing up to hear about the charity's work, registering for a fundraising event or offering to volunteer. A purely incidental interaction will not necessarily be enough, such as signing up to use a charity venue's free Wi-Fi or buying a drink in a charity-run café where they provide an email for their digital receipt.
- The marketing itself must be solely for the charity's charitable purposes. This may cover fundraising appeals, information about campaigns, invitations to volunteer or updates about the impact of the charity's work. It should not be used as general permission to promote unrelated products, services or third-party organisations.
- The charity must also have given the individual a clear opportunity to opt out when their details were collected and must continue to provide an easy way for them to unsubscribe or opt out from further marketing in every communication.
The charitable purposes soft opt-in only applies from 5 February 2026 and can only be used for individuals' details collected from that date. The charitable soft opt-in cannot be applied historically to existing email databases.
The soft opt-in should not be treated as a blanket permission to contact everyone who has interacted with a charity. Care must be taken where supporters may be in vulnerable circumstances, where the charity is dealing with beneficiaries rather than donors, or where the original interaction did not clearly indicate support for the charity's purposes.
Charities that also sell or promote their own products and services may be using the products and services soft opt-in. The ICO is clear that these are two separate soft opt-ins. Therefore, if supporters are already being contacted because they have previously purchased products and services, the charity cannot then start using this as a basis for sending the same supporter direct marketing about its charitable purposes. This may be difficult to distinguish, as a product may have been purchased in order to support a charity. If it is clear that an individual is engaging as a supporter, then the charitable purposes soft opt-in can apply. The ICO has also acknowledged that although the soft opt-ins must be managed separately, there may be instances where both apply. In those cases, one message may be sent; however, separate opt-out boxes need to be provided when collecting supporter details and each time the charity sends an electronic marketing message. Managing these separate soft opt-ins may prove challenging for smaller charities.
Practical compliance steps
The Fundraising Regulator's guidance contains some practical guidance on what to consider prior to implementing the charitable purposes soft opt-in. Importantly, where personal data is used, charities should identify an appropriate lawful basis for processing personal data under UK GDPR. The most appropriate (as it is for the products and services soft opt-in) will be legitimate interests. A legitimate interests assessment should be carried out and can help the charity to evaluate its purpose, the necessity of the communication and the potential impact on the individual. This is also a useful way to document reasoning if the charity's approach is later challenged.
Before using the soft opt-in, charities should review how they collect, record and use supporter contact details. They should be able to evidence why a particular contact falls within the rule, including when the details were collected, how the person engaged with the charity, what opt-out information was provided and whether the person has since opted out. Charities should make opting out easy and effective. In practice, this means using plain wording, providing a working unsubscribe mechanism, applying suppression promptly to marketing lists and ensuring preferences are respected across relevant systems and teams.
Charities using the charitable purposes soft opt-in will also be required to update privacy notices, donation forms, event sign-up forms and volunteer registration processes. The Fundraising Regulator's guidance contains charitable purposes soft opt-in examples around the practical use of the charitable purposes soft opt-in or where a legitimate interests assessment may conclude that direct electronic marketing should not be used (for example, vulnerable individuals). The guidance is another useful tool for charities seeking to use the charitable purposes soft opt-in; however, charities are also recommended to follow the ICO's own guidance and take their own legal advice in order to ensure compliance.
Key takeaway
The charitable purposes soft opt-in is a useful opportunity for charities if used correctly. It can help charities maintain meaningful relationships with supporters and explain the impact of their work, but if used incorrectly it could damage trust and create regulatory risk. The safest approach is to follow guidance carefully, intentionally apply the rule, document decisions, train staff and volunteers and ensure every communication provides recipients with a clear, simple way to opt out.
