When the Data (Use and Access) Bill passes, it will amend direct electronic marketing laws to allow charities to send marketing emails to individual supporters, even when they haven't specifically consented to receive them. But what sort of marketing will be permitted? In particular, will charities be able to send unsolicited fundraising emails?
Regulation 22 of the Privacy and Electronic Communications (EC Directive) Regulations 2003 ("PECR") creates a rule that means that in most circumstances a person cannot send unsolicited direct electronic marketing (which these days mostly means email and text messages) to an "individual subscriber" unless the recipient has specifically consented to receive it. An "individual subscriber" is a person who has a contract with the service provider (e.g. the email provider or phone provider), and in most cases it equates to one's personal email account or phone number.
But there is an exception to the rule: regulation 22(3) says that where the sender obtained the contact details of the recipient in the course of the sale, or negotiations for the sale, of a product or service, then unsolicited marketing can be sent without consent, provided that the recipient was offered an opt-out at the time their details were obtained, and is offered one each time marketing is sent. This exception is commonly referred to as the "soft opt-in".
Charities, though, do not, in the main, sell products or services, and so have not been able to avail themselves of the soft-opt in. The Data (Use and Access) Bill would change that. Clause 114 says that a charity would be able to send or instigate the sending of direct electronic marketing where it obtained the recipient's details when they expressed an interest in, or offered support for, its charitable purposes, and where "the sole purpose of the direct marketing is to further one or more of the charity's charitable purposes".
So, would an email which solicited funds (and perhaps did nothing else) be permissible? Everything a charity does should further its charitable purpose(s), though sometimes it also has the power to do things that are 'incidental' or 'ancillary' to this. Fundraising is an activity that charities carry out to raise money to spend on their charitable purposes, not a charitable purpose in itself. It is a way of indirectly furthering a charity's purpose or purposes indirectly, but can indirect furthering of purposes be allowed under clause 114?
Ultimately, it will be for a court to decide (no doubt assisted by guidance from the Information Commissioner which one imagines will be produced once the Bill is passed). But clause 114 was introduced by the government, by an amendment at report stage, and received cross-party support. When proposing the amendment, the minister, Lord Vallance, said.
"This amendment will permit charities to send marketing material—for example, promoting campaigns or fundraising activities—to people who have previously expressed an interest in their charitable purposes, without seeking express consent." (emphasis added).
This is surely a clear steer as to how the clause should be interpreted, and it would be very surprising if the ICO or a court subsequently saw it differently.
None of this is to say that charities should see this as free rein to send masses of spam emails, however important the cause or urgent the fundraising need. In particular, they should be aware that the opt-out provisions have to be abided by, and that the ICO is particularly active in its enforcement of PECR, and quite rigid in its approach. Add to this the fact that the Data (Use and Access) Bill will increase the maximum fine for a PECR infringement from the current £500,000 to £17.5 million or 4% of global annual turnover (whichever is higher), and there will be significant regulatory and legal risk for getting it wrong. But at a time of financial constraint for charities, the loosening of restrictions on fundraising emails should be welcomed by the charity sector.