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The new Data Bill - unfair to non-profits?

Posted on 6 November 2024

The new Data (Use and Access) Bill could have provided an opportunity for the Government to show its commitment to a planned new "covenant" with the charity sector, by reviving a proposal to change the law and allow charities and other nonprofits to promote their services by email and text message, in the same way that profit-making companies can. The previous Data Protection and Digital Information Bill, which was dropped just before the general election, proposed to extend what is known as the electronic direct marketing “soft opt-in” to non-profits. However,  a similar clause does not appear in the new Bill.

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 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, takes its definition from 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 consent requirement is at regulation 22(3) of PECR, which says that the sender 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 has long (and perhaps unhelpfully) been known as the “soft opt in”.

Note 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 who might 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 has long held that promotional communications sent by such non-profits do constitute “marketing” (and the Information Tribunal has upheld this).

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.

PECR are an old (in terms of technology) piece of law. They gave effect to an EU Directive which was drafted at a time when e-commerce was in its infancy. There is a good argument that the drafters did not envisage a time when non-profits would habitually use, or wish to use, electronic communications to promote their services and ideals. But in current times, there appears to be no rationale for the UK to favour the commercial sector over the non-profit one.

It is noteworthy that the Government did not reintroduce the clause from the previous Bill.  Particularly in light of concerns from the sector about increased employer National Insurance Contributions, and about funding in general, many charities and non-profits may wish to avail themselves of lobbying opportunities as the Data (Use and Access) Bill proceeds in Parliament.

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