Charities are restricted by law as to when and how when they are permitted to send electronic marketing communications to individuals (e.g. email, text or social media messages, but not telephone marketing). The relevant legal provisions are the Privacy and Electronic (EC Directive) EC Regulations 2003 (“PECR”). 

Regulation 22 of the PECR requires any type of entity (including a charity) to obtain the prior explicit consent of any individual to whom it wishes to send any such communication. The PECR however also provides an exemption, (a “soft opt in”) comprising the right for any entity to send such communications, without such explicit consent, where:

1. the recipient’s details have previously been collected by the entity during the course of a sale, or negotiation for a sale, to them of a product/service; and
2. the communication only promotes the entity’s similar products and services not those of others; and
3. the recipient is given the opportunity of opting out of marketing at the point of data collection and in every subsequent communication.

This exemption regime has put charities at a disadvantage since they are not, or at least not primarily, engaged in sales of products or services to individuals. They instead communicate with individuals who are not “customers”, i.e. they deal with donors, in relation to fundraising and other support for the charity’s objectives. This means that charities are not in practice able to avail themselves of this narrow “soft opt-in” exemption in relation fundraising generally. 

Until now, there has not been any additional exemption for charities which would allow them to communicate with individual donors about, say, future fundraising campaigns or about the charity’s activities. This has meant that charities have only been legally permitted to send such communications if they first have explicit consent to do so from the individuals concerned.

However, there is now a much wider exemption ("soft opt-in"), specifically created to assist charities, as to which see below.