Soft opt in marketing for non-profits

Why can’t charities send speculative promotional emails and text messages to customers and enquirers, in circumstances where commercial organisations can? And should the law be changed?

Regulation 22 of the Privacy and Electronic Communications (EC Directive) Regulations 2003 (PECR) deals with circumstances under which a person can send an unsolicited direct marketing communication by email, or text message.

In simple and general terms, a person cannot send an unsolicited direct marketing email or text message to an individual’s private email account, unless the individual has consented to receive it. “Consent”, here, has the stringent requirements imposed by Article 4(11) and Article 7 of the UK GDPR.

(The actual law is more complex – it talks of an “individual subscriber”. This is the person who is a party to a contract with a provider of public electronic communications (for which, read “email” and “text message”) services for the supply of such services. So, if you have signed up for, say, a gmail account, you have a contract with Google, and you are – if you are an individual – an individual subscriber.)

The exception to the requirement to have the recipient’s consent is at regulation 22(3) of PECR, which says that the sender of the marketing communication does not need the prior consent of the recipient where the sender: obtained the contact details of the recipient of that electronic mail in the course of the sale or negotiations for the sale of a product or service to that recipient; the direct marketing is in respect of the sender’s similar products and services only; and the recipient has been given a simple means of refusing the use of their contact details for the purposes of such direct marketing, at the time that the details were initially collected, and at the time of each subsequent communication.

This exception to the general “consent required” rule has long (and probably unhelpfully) been known as the “soft opt in”.

The notable requirement for the soft opt in is, though, that the recipient’s contact details must have been collected in the course of the sale or negotiations for the sale of a product or service.

There are various types of non-profit organisation which may well correspond with, and wish to send promotional emails and text messages to individuals, but which don’t as a rule sell products or services. Perhaps the most obvious of these are charities, but political parties also fall into the type.

The Information Commissioner’s Office (ICO) has long held that promotional communications sent by such non-profits do constitute “marketing” (and the Information Tribunal upheld this approach as far back as in 2006, when the SNP appealed enforcement action by the ICO). (I happen to think that there’s still an interesting argument to be had about what “marketing” means in the PECR and data protection scheme, and at one end of that argument would be a submission that it implies a commercial relationship between the parties. However, no one has yet taken the issue – as far as I’m aware – to an appellate court.)

But the combined effect of regulation 22(3) and the interpretation of “marketing” as covering promotional emails and text messages by charities, means that those charities (and political parties etc.) can’t send soft opt in communications.

The Data Protection and Digital Information Bill, which tripped and fell yards from the finishing line, when Mr Sunak, in a strategic master stroke, called the general election early, proposed, in clause 115, to extend the soft opt in where the direct marketing was “solely for the purpose of furthering a charitable, political or other non-commercial objective” of the sender.

Will the new Labour administration’s proposed Digital Information and Smart Data Bill revive the clause? The government’s background paper on the legislative agenda in the King’s Speech doesn’t refer to it, but that may be because it’s seen as a relatively minor issue. But, in fact, for many charities, the issue carries very significant implications for their operations and their ability effectively to fundraise.

It should be revived, and it should be enacted.

The views in this post (and indeed most posts on this blog) are my personal ones, and do not represent the views of any organisation I am involved with.