After weeks of back and forth between the House of Commons and the House of Lords – the Data (Use and Access) Bill has finally been agreed. Royal Assent is now just weeks away, and we anticipate the legislation will be enacted towards the end of this year.
This is a significant step forward for the sector and brings with it some big changes to the way charities can communicate with their supporters – crucially, it will give charities access to the soft opt-in for email marketing and clearer guidance on legitimate interest.
Originally the Data Protection Bill, under the former Conservative government, it was scrapped in the 2024 pre-general election wash-up. The first draft of the new Bill – Data (Use and Access) – was presented to the House of Lords by the new Labour administration in October 2024. It had omitted the clause from the original Bill, which extended the soft opt-in to electronic marketing to charities, as well as other non-profit organisations and political parties.
The Chartered Institute of Fundraising lobbied hard on behalf of the sector to ensure the soft opt-in clause for charities was reinstated and in January 2025 the government confirmed they would accept the proposed amendment. Soft opt-in for charities only was back on the table.
Now that the text of the Bill has been agreed by both Houses, we enter the final stage of Royal Assent, when the Bill officially becomes an Act of Parliament, and therefore law.
This legislation should make it easier for charities to contact their supporters and donors by e-mail and text message where:
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Expressing an interest in one or more of the purposes that were the charity’s charitable objectives at that time; or
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Offering or providing support to further one or more of those objectives;
This is welcome news for charities – the law about the use of data in fundraising will become more flexible and open up new opportunities to contact supporters and donors.
Of course, there is no obligation for charities to make use of the soft opt-in exemption – some charities may decide to retain a consent model for a variety of reasons, or to only use the exemption in limited circumstances. It is entirely down to the organisation.
The Chartered Institute of Fundraising will now work closely with the Fundraising Regulator and the ICO on joint messaging and guidance to ensure that charities are able to benefit from these changes, while still remaining compliant.
While the details are still being ironed out and there are questions to be answered there is one key detail that must be flagged.
The legislation is not retrospective – and charities will not be able to use the exemption in respect of existing supporters who have previously consented to receive marketing or who have opted out. It 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 will therefore only be able to implement this legislation for new 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 is therefore going to be crucial.
We will work with our legal partners to ensure our members have guidance to support this.
Charity law firm Bates Wells recommend that charities start thinking about the wider impact on supporters and updating their Vulnerable Persons policies to help ensure that people are not receiving too much marketing or feeling pressured to donate.