Soft opt-in for charities: What the new email marketing rules mean for you

There’s good news for charities that would like to be able to contact more of their supporters and raise aware of their good causes. The rules on direct marketing by charities will change later this year to allow them to email donors and supporters provided that certain conditions are met.

What is direct marketing?

Direct marketing is the communication, by whatever means, of advertising or marketing material to particular individuals. An email to a specific person’s account for example, whether to their private or work email, is a direct communication.

What constitutes ‘advertising or marketing’? It includes promoting a charity’s aims and ideals as well as fundraising, campaigning and promoting community or charitable work.

Direct marketing does not include ‘service messages’, which are messages sent for administrative or customer service purposes only.  This can include acknowledging safe receipt of a donation, sending out an information pack upon request, dealing with membership applications or notifying members about a members’ meeting or the annual general meeting.

What are the current rules?

Currently, charities can send marketing emails to a member of the public in one of two circumstances. The first is that the person has specifically opted-in to receive marketing emails. The second is that the person provided their email address to the charity during a negotiation or purchase of the charity’s products or services and did not object to receiving marketing from them for similar products and services. This is known as ‘the soft opt-in’.

Up until now, charities have been able to use the soft opt-in to send marketing emails to people who have bought something from them, but not to people who have donated to the charity or expressed interest in its work as there wasn’t any purchase or negotiation involved.

What will the new rule be?

The Data (Use and Access) Act 2025 is adding an extra rule to allow charities to send marketing emails on a ‘soft opt-in’ basis where each of the following conditions are met:

• The sole purpose of the email is to further one or more of the charity’s charitable purposes; and
• The charity obtained the email address from the person directly; and
• The email address was obtained when the person expressed interest in, offered or provided support for one or more of the charitable purposes; and
• The person was given a simple way to refuse direct marketing at the point their email address was obtained; and
• The recipient is given a simple and effective way of opting out in every subsequent marketing email.

Which charities can use the new rule?

This rule applies to all Scottish registered charities that appear on the Scottish Charity Register as well as all other charities registered in accordance with the Charities Act 2011 and the Charities Act (Northern Ireland) 2008, all of which must continue to meet the charity test.

Practical considerations – our top tips

Although the legislation has been passed by Westminster, this change to the rules won’t take effect until later this year. The exact date is still to be announced by the UK Government. You’ve got time to update your marketing strategy but don’t jump the gun!

To get the most benefit from this new rule, your charity should take the time to consider whether it wants to use the soft opt-in for some, or all, of its marketing activity. Some charities may decide they want to continue obtaining consent, so there is no question people want to hear from them. Other charities may decide that the soft opt-in is appropriate when contacting some of their supporters, or for certain marketing activities, but not for others. Any charity changing its approach should keep a record of its decision and reasons.

If you go ahead with using the soft opt-in, make sure you can offer the option to refuse direct marketing when you obtain an email address, and provide a simple way to opt-out or unsubscribe in all future email marketing. You also need to make sure that option is effective and you don’t email people who have already opted out. You might have a CRM system that can manage this for you. If you manage your email lists manually, consider writing a short procedure about how you will handle opt-out requests and make sure everyone involved in your marketing is familiar with it. Either way, you should think about how you could demonstrate your compliance with the rules in case you are challenged in the future.

Larger charities (those with 250 or more employees) will need to update their record of processing activities to reflect the different lawful basis for some, or all, of their direct marketing.

Other developments

Earlier this year, the Information Commissioner’s Office (ICO) consulted on updates to its guidance on storage and access technologies. This includes the use of cookies, tracking pixels, link decoration and other techniques that you might use in targeted online advertising. The ICO expects to finalise and publish its guidance over the winter.

As online marketing techniques develop and become more sophisticated, it’s important to make sure your practices comply with the law.

How we can help

If you have any questions or need assistance on how your charity approaches direct marketing, please get in touch with  David Freeland, Douglas McLachlan, our Charities team or your usual Anderson Strathern contact.