Fundraising Regulator guidance on charitable purpose soft opt-in

The Fundraising Regulator has published its long-awaited guidance on the charitable purposes soft opt-in and fundraising marketing. The guidance is the final piece of the regulatory jigsaw for charities on the new “charitable purposes soft opt-in” which became law in February. It is intended to complement the ICO’s main guidance published in April, which we have already provided a written overview of.

After the ICO guidance was published, the Regulator urged charities to “avoid using the new provision in ways that could damage public trust and confidence in charitable fundraising.” The new guidance covers the use of marketing in fundraising more generally - including by telephone and post, as well as donor prospect research - but includes two sections on how fundraisers should use the charitable purposes soft opt-in to ensure they comply with the Code of Fundraising Practice.

The guidance elaborates on what the Regulator considers would be unlawful use of the soft opt-in, with working examples of the correct approach to take. It includes more detail than the ICO’s guidance in some areas - for instance, it states that only staff and “on behalf of” volunteers can use the new opt-in right. It makes clear that personal data collected by a third party is excluded “whether or not they were acting on your behalf in collecting the data”. It adds professional fundraisers and commercial participators as examples of third parties who cannot collect data for the purposes of the soft opt-in.

The guidance also recommends that charities follow the Regulator’s own six-step assessment that it calls “ATRIUM”:

• Assess - carry out a legitimate interest assessment.
• Train – train your staff and “on behalf of” fundraising volunteers before you start using the soft opt-in. 
• Review – review and update your existing policies and procedures, such as direct marketing and privacy policies and supporter data management tools.
• Implement – only implement the soft opt-in lawfully, in line with the ICO guidance.  
• Understand – make sure you understand the ICO guidance and take professional advice if needed. 
• Monitor – monitor your use of the soft opt-in to ensure you remain compliant.

Although the guidance stresses that charities need to comply with the ICO guidance, the new guidance is essential reading for fundraisers grappling with how to implement the new soft opt-in in practice, given the regulator’s remit in ensuring compliance with the broader principles of the Code of Fundraising Practice.