Charity fundraising reforms dropped in revised Data Protection reform bill

Reforms designed to make it easier for charities to send marketing via email to existing donors have been dropped from the Data (Use and Access) Bill.

Email and text marketing campaigns are key marketing strategies used by charities. A change had been proposed to make it easier for charities to send text and email marketing to existing donors, however this has been dropped from the new government’s Data (Use and Access) Bill. 

Background – the current regime

The regulation governing electronic marketing, known as PECR, normally requires an organisation to obtain the consent of the individual before sending email and text message marketing communications to them (in addition to the requirements of the UK GDPR). Marketing covers fundraising emails and also other materials promoting the aims of the charity. 

However, where an individual purchases a service or goods from a business, the business is allowed to bypass the need for consent to email or text marketing under PECR and still market similar products and services to the individual via email or text message provided the business:

• gives the individual an opportunity to opt out at the time of obtaining the user’s details;

• gives an option to opt out in all future communications; and

• has satisfied the requirements of the UK GDPR (primarily by ensuring it has a legitimate interest or other lawful basis for sending the marketing to the individual). 

This is known as the ‘soft opt-in’. A cursory glance at any email inbox will tell you that commercial businesses make full use of this soft opt-in. 

However, the soft opt-in is not currently available to charities seeking to contact donors. This is because donors do not purchase anything from the charity, and do not therefore satisfy the requirements of PECR to utilise the existing soft opt-in. 

Reforms proposed to the soft opt-in for charities

The Data Protection and Digital Information Bill (“DPDI”), introduced by the last government, sought to amend PECR to allow charities and political parties to market to existing donors using the soft opt-in mechanism. However, this DPDI Bill failed to make it through the parliamentary stages before the general election, meaning that a new Bill needed to be introduced by the new government. 

Data (Use and Access) Bill – reforms withdrawn

The Data (Use and Access) Bill has now been introduced to the House of Lords. The Bill retains many useful data protection reforms from the DPDI Bill, but does not include any amendment to the soft opt-in. 

This means that, unless an amendment is made to the Bill as it makes its way through Parliament, charities will be stuck with the current requirement to obtain consent from all individuals to whom they wish to send email or text message marketing, which continues to restrict charities’ ability to market to existing donors. 

What this means for charities

Many charities had started to plan marketing strategies on the basis that the soft opt-in would become available to them in the near future. These strategies will, unless the Bill is amended, need to be revised to ensure that charities continue to only send email and text marketing to donors who have provided consent to receive such communications.