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Data reform - new fundraising opportunities for charities and non-profits

Posted on 20 June 2022

Slightly hidden away in the government's announcement of proposed data protection reform is something of real significance for fundraising in the charitable and non-profit sector.

There is a general bar on sending unsolicited direct electronic marketing (i.e. by email and SMS) to individuals (see regulation 22 of the Privacy and Electronic Communications (EC Directive) Regulations 2003 ("PECR")).  But, currently, there is an exemption which allows commercial organisations (defined as those who sell products or services) to send such marketing to existing customers, and to those with whom they have "entered into negotiations" for the sale of a product or service, as long as the marketing is in respect of similar products and services, and as long as the recipient is given a simple means of opting out for the future. The exemption is often referred to as the "soft opt-in" to marketing.

However, those who do not sell products or services, like charities or other non-profits, cannot currently avail themselves of this "soft opt in" exemption. So, when sending electronic marketing for the purposes of fundraising, they have had to get – in advance – the recipients express consent to receive the message (which in practice is often simply impracticable).

Many in the charity and non-profit sectors have long argued for a change to the law, and they will now be pleased to see that the government proposes that it "intends to extend the soft opt-in to non-commercial organisations" (notably, this might also include political parties). At the same time, though, the government stresses that it will take steps to make sure that appropriate safeguards are in place to protect individuals who do not wish to continue receiving communications – among those steps is a further proposal to raise the maximum fine for serious infringements of PECR from £500,000 to £17.5 million, or 4% of global annual turnover (whichever is higher). But (assuming the changes go through) provided that charities and non-profits make sure they comply with the wider law, most of them should not find themselves at risk of significant fines.

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