The Information Commissioner’s Office (ICO) has now updated its ‘Direct marketing and privacy and electronic communications’ guidance in light of the changes made to the Privacy and Electronic Communications Regulations 2003 (‘PECR’) by the Data (Use and Access) Act 2025. Crucially, this includes the long-awaited final guidance on the use of the ‘charitable purposes soft opt-in’ exemption. Many in the charity sector had concerns about the workability of the draft guidance that the ICO put out for consultation last year. The revised guidance addresses some of those concerns by clarifying a few key points, but also raises further questions about how charities can use the exemption in practice.
What is the charitable purpose soft opt-in?
Our previous blog provides detailed information on the charitable purpose soft opt-in. In summary, as of 5 February 2026, charities can use the new soft opt-in exemption to send e-mails and text messages to supporters without consent, but only where the following conditions are met:
- You’re a charity.
- You obtained the recipient’s contact details.
- You did this through the person expressing an interest in, or offering or providing support for, your charitable purposes.
- The sole purpose of your direct marketing is to further your charitable purposes.
- You provided the recipient with an opportunity to refuse or opt out when you collected their contact details.
- You give the recipient an opportunity to refuse or opt out in every subsequent communication.
The new ICO guidance breaks down what each of these elements means in practice.
Condition 1: You’re a charity
You must be a charity under the laws of England, Wales, Scotland and Northen Ireland. The exemption cannot be used by non-profit organisations or social enterprises etc.
Condition 2: You obtained the recipient’s contact details
You must obtain the contact details directly. The ICO guidance says the exemption can’t be used if obtained by a third party, including online fundraising platforms or charity trading subsidiaries. What isn’t clear is if a ‘third party’ in this context extends to suppliers, for example, a fundraising agency that may be signing-up supporters on the charity’s behalf. We would argue that the soft opt-in could be used where the supplier is merely acting as a processor of personal data, (as all data is under the charity’s control, and it would be clear to individuals that they are expressing an interest in or supporting the charity, and not the supplier). The guidance does not however confirm this.
You can only use the charity soft opt-in if you obtained the contact details after 5 Feb 2026 (and met the other criteria, including having the right opt-out statements in place etc.). The guidance does however provide a helpful example on the timing point, which says that if a supporter donated online in 2025 but did not consent to electronic marketing, and then donated again in April 2026, was presented with the soft opt-in privacy wording and didn’t opt out, then the charity can use the soft opt-in to contact them. There is therefore scope to use the soft opt-in for existing supporters, but they must have fresh engagement with the charity after 5 Feb 2026.
Condition 3: Details were obtained through a person expressing an interest in, or offering or providing support, for your charitable purposes
‘Expressing an interest’ involves people engaging with your charitable purposes, for example, someone asking for information about the work your charity does. However, the guidance confirms that interactions that don’t reveal anything about the person’s interest won’t normally be enough. It provides the example of someone who only provides their e-mail address to connect to the wi-fi at a community café run by a charity but does not do anything else to suggest they are interested in the charity’s work.
People who access your charity’s services may also express an interest in the charity’s purposes if they do something ‘over and above’ merely receiving your support. The guidance provides the example of someone attending a well-being session who asks for more information about the charity’s other services and provides their e-mail address on a form which includes the appropriate opt-out wording. This is likely to be quite hard to judge in practice, and charities will need to think carefully about what services or actions the soft opt-in may apply to. Charities must also consider if it is appropriate to send marketing to a service user, especially where someone may be vulnerable or at risk of harm.
‘Offering or providing support’ includes a person donating to or volunteering to help your charity. The guidance says that when someone buys something from a charity, this usually falls within the existing product and service soft opt-in (and not the new charity soft opt-in). However, the ICO recognises that some purchases are clearly indicative of support for the charity’s charitable purposes e.g. a membership subscription, sponsoring an animal, entering a charity raffle or taking part in a paid-for challenge event. In order to make use of the soft opt-in in this context, it must be clear that the person is engaging with you as a supporter and that the payment contributes to your charitable purposes. The guidance provides an example of a charity selling a T-shirt on its online shop as part of a campaign, with the proceeds going directly toward supporting the campaign. However, the interaction must be with the charity and not its trading subsidiary. In practice, most charities sell new merchandise (along with other products and services) through their trading subsidiaries for tax and charity law purposes, so this example is not particularly helpful, given the realities of how charities operate. The soft opt-in also cannot be used where the interaction is incidental or just transactional – this will depend on the context e.g. you couldn’t use the soft opt-in with someone who purchases items at a park café run by a charity and provides their e-mail address for a digital receipt.
Condition 4: The sole purpose of the marketing is to further your charitable purposes
This would include sending electronic marketing messages to ask for donations, promote volunteering opportunities and provide information about a charity’s projects and campaigns. We assume that it can also be used to send information about a charity’s lottery, events, membership offering etc., so long as condition 3 is met.
The ICO guidance makes clear that you cannot use the charity soft opt-in to send electronic direct marketing about other organisations e.g. partner charities or corporate supporters. This could be an issue for charities that include sponsor or partner details in newsletters etc.
Conditions 5 and 6: You provided an opportunity to opt-out of receiving marketing at the time you collected the contact details and in every subsequent communication
This works in the same way as the existing soft opt-in for products and services. You must have a prominent opt-out box at the time a person provides their details (it cannot be hidden in a privacy policy or require the person to take an extra step e.g. call a contact centre). For subsequent marketing messages, there must be a means for people to directly reply to a message or click an unsubscribe link / text a stop code.
What happens if both soft opt-ins apply?
The existing ‘commercial’ soft opt-in allows organisations to send marketing about their products and services, whereas the new charity soft opt-in allows charities to send marketing that furthers their charitable purposes. The guidance confirms that charities can sometimes use both at the same time. In this scenario, the charity must offer two opt-out boxes, one for marketing about products and services and one for marketing about the charity’s ‘purposes’ e.g. donations / campaigns etc. If a person does not opt-out of either type of marketing, then the charity can send one message combining both types of marketing. However, and as noted above, the data would have to be obtained by the charity only (and not by a trading subsidiary or other third party).
The guidance provides the example of a heritage preservation charity which sells tickets to enter a heritage building. At the online checkout for ticket purchases it presents two separate opt-outs – one for receiving e-mail marketing about similar products and services e.g. tickets for future exhibitions or tours, and another for e-mail marketing about volunteering and requests for donations etc. This seems like an artificial and overly complex distinction given that all of the charity’s income (including ticket sales) must be used to further its charitable purposes and that – in many cases – people who buy tickets will inherently be supporting (or want to support) the charity’s charitable purposes. This also means that charities will need to maintain different marketing preference lists, including those who have opted out of one type of marketing, but not the other, as well as those who previously consented to marketing, which is likely to be difficult to manage in practice.
Summary and next steps
Whilst it’s helpful to now have the finalised guidance, it does create complexities for charities that want to use the charitable purposes soft opt-in, particularly those that have a range of interactions with supporters and which also sell goods and services, either through the charity or a trading subsidiary. Charities will need to think carefully about how to apply the guidance to their own marketing plans – there is unlikely to be a one-size fits all approach. This will include agreeing an internal protocol for the use of the soft opt-in, preparing legitimate interest assessments and updating the charity’s privacy policy.
The Fundraising Regulator has also recently announced that it will be producing its own guidance on the charitable purposes soft opt-in.
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 advice.