New guidance for charities from the ICO and Fundraising Regulator (FR) on the ‘soft opt in’ permitting electronic fundraising/marketing messages
In April, the Information Commissioner’s Office (ICO) updated existing guidance for organisations on electronic direct marketing. This covers using email and direct messaging online via social media, for example. It also applies to texts, picture messages, video messages, voicemails, or any similar message stored electronically.
It remains the case that enforcement action is taken promptly by the regulator when it receives complaints about organisations using personal data to send unsolicited electronic messages. So it is essential that organisations operate in ways that ensure compliance with the law.
ICO guidance can be overwhelming in the level of detail provided. The recommended place to start is their ‘brief guidance’ on electronic marketing. It clearly explains the default legal position, which is that organisations must not send marketing emails or texts to individuals without specific consent, although there is a specific and limited exception for your own previous customers or service users, which it is standard practice to call the ‘soft opt-in’. The brief guidance summarises how this works in practice, and if further clarification is needed, then the supplementary ‘detailed’ guidance provides a deeper dive. It is well structured and comprehensive, in particular the section headed “How do we comply with the PECR electronic mail marketing rules?” which includes practical examples of ‘good’ and ‘bad’ practice.
This update also addresses the change applicable to charities, introduced by last year’s Data (Use and Access) Act, which came into effect on 19th June – in particular, under the heading “How do we use the charitable purposes soft opt-in?”. Now UK charities are allowed to send electronic mail marketing without consent, provided the message furthers their own charitable purposes – but only where a number of specific requirements are met.
The ICO worked closely with the UK’s Fundraising Regulator (FR) when producing this updated guidance. Last week, the FR itself released a new online resource which complements the ICO’s guidance to help charities understand and comply with the law when engaged in fundraising marketing.
The FR states clearly at the outset that their own guidance is not legal advice and is non-exhaustive, and reminds readers that they are required to comply with the ICO guidance. It is excellent and helpful additional resource, since it discusses practical situations which arise for charities with a ‘deep dive’ level of detail that is not provided by the ICO. For instance, it examines donor prospect research, and includes links to other sections of its own guidance on topics such as Monitoring fundraising partners, Due diligence and fundraising, and Donors in vulnerable circumstances. It also gives practical examples of unlawful uses of the (new) soft opt-in for charities, and provides a structured six step approach to help charities think through whether they wish to take advantage of this change to the law, and if so how to implement soft opt-in lawfully and responsibly.
If you have any questions on any of the issues raised in the above article, please contact Sean Morris.