Navigating soft opt-in and new guidance from the ICO

The introduction of soft opt-in to direct electronic marketing for charitable purposes earlier this year marked a significant shift in how charities can engage with supporters. 

Designed to create more flexibility while maintaining robust data protection standards, the update to the Privacy and Electronic Communications Regulations (PECR) has been widely anticipated across the sector. You can read more about the lobbying work carried out by the CIOF last year to have soft opt-in for charities included in the Data (Use and Access) Act here. 

Almost three months on from implementation of the legislation, the Information Commissioner’s Office (ICO) has now published detailed guidance on how charities can apply these new rules in practice.  

So, what does this mean for organisations operationally? 

This is a necessary and helpful step forward – for the past three months charities have been in limbo somewhat trying to figure out how best to navigate soft opt-in without guidance from the ICO. 

Clear regulatory direction is essential in an area such as this – compliance, supporter trust and fundraising effectiveness are intertwined – so we welcome the publication of this guidance. However, it does introduce a level of complexity for charities that we remain concerned about. 

There is a requirement for charities to clearly distinguish between different types of marketing activity and the lawful bases that underpin them, with the guidance outlining three key categories: charitable soft opt-in, commercial marketing of products and services, and communications based on pre-existing consent. These distinctions may seem straightforward in theory, however they could present practical challenges for charities in real-world application. 

For many charities – the Chartered Institute of Fundraising included – implementing this level of separation within CRM systems could be far from simple. Accurate categorisation of contacts, alongside the ability to track and manage different marketing preferences, requires both system capability and administrative resource. 

We do have concerns about the potential operational burden these requirements may create – particularly for smaller organisations without the staff resources or capacity to take on this additional work.  

Where systems are not designed to handle this, charities may face increased manual processes – in an environment where resources are already stretched, this could lead to a greater risk of error.  

Third-party fundraisers 

The ICO’s guidance is clear that charities must obtain the recipient’s details directly in order for the requirements of soft opt-in to be met. The guidance states: 

The soft opt-in doesn’t apply if someone else obtains the contact details for you, even if it’s another organisation closely connected to your charity, such as a trading subsidiary. There is no such thing as a third-party marketing list that is ‘soft opt-in compliant’. 

The example given is if a supporter donates through a third-party online fundraising platform, with the platform collecting the supporter’s email address and passing it on to the charity, then the charity is not deemed to have collected those contact details directly and therefore cannot use soft opt-in for that person. 

However, what isn’t clear is whether or not third-party fundraising agencies, working on behalf of a charity (in public fundraising regular giving campaigns for example) are included in this – we have contacted the ICO to seek clarification on this urgently. We believe a third-party agency, contracted to and operating on behalf of a charity, should be considered as a branch of the charity and therefore the details collected by them should be viewed as being collected by the charity directly. 

Valuable opportunity 

Hurdles aside, soft opt-in, when applied correctly, presents a valuable opportunity for charities. Allowing them to engage more easily with individuals who have expressed an interest in their work, it opens the door to more consistent and meaningful communication going forward. 

This in turn has the potential to strengthen supporter relationships – moving away from one-off interactions towards longer-term sustained engagement built on relevance and trust. 

The key really lies in how charities choose to implement these changes. Compliance, fairness, transparency and accountability must be considered – supporters should understand why they are being contacted, what they can expect, and how they can exercise control over their preferences. Of course, you may decide to stick with a consent-only model and that’s absolutely fine. 

Looking ahead 

The CIOF is committed to supporting its members through this transition through promoting best practice approaches that balance regulatory compliance with practical feasibility, as well as continuing to push for solutions that minimise unnecessary burden on the sector. 

Ultimately, soft opt-in presents both a challenge and an opportunity for the sector. It raises the bar on how charities manage marketing communications – and it also encourages a more thoughtful, structured approach to supporter engagement. It could become a powerful tool, not just for fundraising, but for creating long-term trusted relationships with supporters that could lead to a lifelong commitment to charitable giving. 

Read the ICO's published guidance

Watch our webinar about soft opt-in