Exciting news for charities about Data Protection? Actually, yes!

Provisions in the new UK Data (Use and Access) Act 2025 will soon allow charities to send electronic communications to a person without their explicit consent, provided certain conditions are met. This will dispense with the need to obtain express and informed opt-in consent for emails containing fundraising, marketing or promotional content.

The legislation was initiated under the last Conservative government, but progress slowed with the change of administration in July 2024.

The long overdue change will put charities on a similar footing to commercial enterprises, which have been able for some time to email customers with whom they have previously done business. For charities, the so called ‘soft opt-in’ will also require some kind of previous active engagement to ensure that the communication is relevant to the recipient, such as donating, volunteering, or subscribing for updates. There is a suggestion that those already on one’s database may not be included unless and until they engage with the charity in some way, especially if they have previously asked not to be emailed.

The legal basis for using someone’s personal information in this way would be ‘legitimate interest’, rather than consent, but it is always open for an individual to object to this kind of data processing and to opt-out of email or other electronic communications. Indeed, one of the preconditions is that an opt-out must always be offered with the first, and every subsequent communication.

As always, there must be transparency around how data is used, and so privacy policies will need to state clearly how personal information is being processed, and a link included in email footers so individuals can be properly informed.

One principal advantage will be that charities will be able to include marketing and fundraising content in administrative emails, which previously would have needed consent. Even something like a “Support our Summer Fundraising Event” icon in an email footer would previously have been problematic without consent, but will in future be acceptable.

Notwithstanding this flexibility, charities will still need to maintain robust systems for recording who has opted-out, including where, having asked for consent, someone hasn’t given it. Going forward, it may be prudent not to ask for consent where it’s not strictly required, as silence would imply a lack of agreement!

It also can’t be assumed that just because someone hasn’t opted out, they can be emailed with impunity for evermore. Data goes out of date and a lack of any engagement with the charity or its emails – opening them, clicking on links and so on - may mean that the recipient isn’t interested and the legal basis of legitimate interest falls away; so some housekeeping around how emails land will be required.

Further guidance is expected to be published by the Information Commissioner’s Office and the Fundraising Regulator in the coming months.

For advice on preparing for this change in the regulations, please contact me.