The new charitable ‘soft opt-in’ now in force as of 5 February 2026

Changes to how charities can contact supporters

It is not often that new data protection law actually makes it easier to do things. But that is the case with the Data (Use and Access) Act (‘the DUAA’). The legislation makes it easier for charities to contact existing supporters by e-mail and text message by extending the ‘soft opt-in’ exemption to charities. The government has now published the commencement regulation that brings this exemption, along with many other changes to the UK GDPR and the Privacy and Electronic Communications Regulations 2003 (‘PECR’ for short), into force on 5 February 2026.

PECR requires organisations to have a person’s consent to send them electronic direct marketing communications. There is an exemption to this called the ‘soft opt-in’ which enables companies to send electronic marketing messages to customers about the same or similar goods or services (e.g. a supermarket sending a customer an e-mail about weekly food offers). This is on the basis that the customer was given the chance to opt-out of receiving marketing messages at the time they provided their contact details, and in every subsequent marketing message. This exemption can only be used in relation to commercial transactions and so has only been available for charities to use in very limited circumstances, for example, to send marketing to customers who have bought merchandise from an online shop or attended a paid-for event. Charities have not been able to use it to send fundraising messages to donors or supporters about appeals or campaigns etc.

The DUAA changes this by introducing the ‘charitable purpose soft opt-in’ which enables charities to send marketing e-mails and texts to donors and supporters where:

• the sole purpose of the direct marketing is to further one or more of the charity’s charitable purposes; and
• the charity obtained the contact details of the recipient of the electronic mail in the course of the recipient—
  • expressing an interest in one or more of the charity’s charitable purposes; or
  • offering or providing support to further one or more of those purposes;

so long as the recipient is given a simple means of opting-out of receiving marketing messages at the time their details were first collected, and in every subsequent marketing message.  

What are the practical implications?

The introduction of GDPR and the changes it brought about to how charities could contact supporters is still fresh in many charity fundraisers’ minds. The move to a ‘consent only’ model for marketing meant that many charities could no longer contract large swathes of their supporter databases.

The changes to the soft opt-in exemption are therefore very welcome news, especially in the face of increasing costs for charities as a result of inflation and the National Insurance Contribution increase. The Direct Marketing Association estimates that it will increase annual donations to charities by an estimated £290 million.

There is no obligation for charities to make use of the charitable purpose soft opt-in. Some charities may decide to retain a consent model for a variety of reasons, or to only use the exemption in limited circumstances.

Those that do want to take advantage of the exemption should think about the following top tips:

• The legislation is not retrospective, and so charities are not able to use the exemption in respect of existing supporters who have previously consented to receive marketing or who have opted out. It is not possible to switch between two legal bases for processing data (in this case consent and legitimate interests). This is also the case for those people for whom the charity has no marketing preferences recorded as it is unlikely that they will have been given the chance to opt-out at the time they provided their details. Charities are therefore likely to only be able to implement it for donors and supporters who are recruited in the future. This may be tricky to manage internally as some supporters will be contacted under the old consent regime, whereas others will be contacted on the basis of legitimate interest. Good record keeping and database management will therefore be important.
• Privacy notices need to be reviewed and updated to explain to supporters the basis on which their personal data will be used to send direct marketing, and the types of communications they will receive. Opt-out statements also need to be added to all webpages and materials where people provide their contact details.
• The most appropriate legal basis (under Article 6 of the UK GDPR) for processing personal data using the soft opt-in exemption is legitimate interests. The charity should therefore carry out a legitimate interest assessment to assess its interests and balance them against the impact on individual rights and freedoms. We also recommend thinking about the wider impacts on supporters and updating Vulnerable Persons policies to help ensure that people are not receiving too much marketing or feeling pressured to donate etc.
• Charities should keep an eye on guidance and additional requirements that may be issued by regulators such as the Information Commissioner’s Office (ICO) and the Fundraising Regulator. At the end of 2025, the ICO published its proposed approach to the charitable purpose soft opt-in, which we have summarised below. The Fundraising Regulator has also published the following information: Fundraising Regulator publishes information on what charities need to know about the changes to ‘soft opt-in’.

The ICO’s consultation on the charitable purpose soft opt-in

Last October, the ICO published its proposed approach to the charitable purpose soft opt-in. It sought feedback through a consultation, which closed on 27 November 2025. The consultation can be found here. The ICO is now reviewing the feedback it received and will be publishing its final guidance on the charitable purpose soft opt-in later this year.

There are three notable restrictions on the charitable soft opt-in set out in the ICO’s proposed approach.

1. No use for commercial activities

Charities cannot use the charitable soft opt-in to promote or sell products or services, even if all profits go back to the charity. Charities must rely on consent or the commercial soft opt-in instead. Also, charities must keep commercial and non-commercial marketing separate. For example, if a charity sends a fundraising email using the charitable soft opt-in, it cannot also include promotions for charity merchandise in the same email. These must be sent in separate communications in reliance on separate charitable and commercial soft opt-ins. We do not think this accurately reflects how charities operate in practice and is arbitrary given that everything a charity does is to ultimately further its purposes. It will also be difficult to administer different soft opt-ins on charity databases.

2. Contact details must be collected directly by charities and used for charities’ own activities

Contact details obtained via charities’ trading subsidiaries or third-party platforms are not eligible for the charitable purpose soft opt-in. Also, charities cannot used the charitable purpose soft opt-in to promote activities of other organisations, including their trading subsidiaries or partner charities.  It is unclear whether contact details collected by a supplier of a charity, such as a professional fundraiser, on behalf of a charity are covered by the charitable purpose soft opt-in. We would argue that they should be.

3. Not suitable for sensitive situations

Even if all the charitable purpose soft opt-in requirements are met, charities must consider whether it’s still appropriate to send marketing messages. If there’s a risk of causing harm, marketing should not be sent. For example, where contact details were obtained when someone was accessing a charity’s crisis intervention service, subsequently sending them direct marketing could result in harm.

Despite these restrictions, the ICO’s proposed approach seems to take a broad interpretation of what counts as someone ‘expressing an interest’ in a charity’s purposes. The proposed approach suggests that if someone ‘actively engages’ with a charity, they are likely to be ‘expressing an interest’. This includes someone signing up to a newsletter, signing up to a charity website, and even merely requesting information about a charity’s charitable purposes. It is also not limited to people who want to support the charity and can include people who access a charity’s services. Similarly, someone ‘offering or providing support’ to further charitable purposes cover a wide range of activities such as donating to a charity or volunteering. However, as explained above, someone purchasing a charity’s products or services are not covered as these are commercial activities.   

The ICO also seems to take a broad interpretation of the types of marketing that can be sent. Any marketing aimed at furthering charitable purposes is allowed. This includes direct marketing requesting donations, recruiting volunteers, and promoting a charity’s activities. Again, this is subject to restrictions explained above.

The ICO’s proposed approach is not final and may be subject to change as it goes through the consultation feedback.  

Next steps

While the charitable purpose soft opt-in is now in force, there are some uncertainties about how it will be applied in practice, until we see the finalised ICO guidance. Although charities may want to start considering how they implement it, it may be prudent to wait and see what the final ICO guidance looks like first.

If you would like any help with implementing the charitable purpose soft opt-in or have questions about how it might apply to your organisation, please get in touch with us.

The material in this article is provided for guidance and general information only and is not intended to constitute legal or other professional advice upon which you should rely. In particular, the information should not be used as a substitute for a full and proper consultation with a suitably qualified professional. Please do contact the Bates Wells team if you require further information.