ICO guidance on the charitable purpose soft opt-in

The so-called "charitable purpose soft opt-in" came into force on 5 February 2026 and allows charities to send direct marketing to its supporters by email, text or other electronic means, without needing consent – but only if certain conditions are met. 

The ICO (Information Commissioner's Office) has now updated its guidance on direct marketing using electronic mail with a new section explaining what the conditions for using the charitable purpose soft opt-in should be used in practice. The guidance addresses a number of the issues raised in last year’s sector consultation. It is clear and provides helpful commentary, including worked examples, on what might and might not fall within the opt-in. If you are planning to use the new opt-in, it is recommended that you read the guidance carefully. 

What are the conditions for using the new opt-in? 

In brief, the guidance explains that a charity may send electronic mail marketing without consent where the message furthers their charitable purposes, but only where all the following requirements are met: 

•    the sender is a charity.

•    the charity itself obtained the person’s details.

•    the details were collected through the person expressing an interest in, or offering or providing support for, the charity’s charitable purposes.

•    the sole purpose of the direct marketing is to further the charity’s charitable purposes.

•    the charity provided the person with an opportunity to refuse or opt-out when the details were collected, and

•    the person is given an opportunity to refuse or opt out in every subsequent communication. 

Key points to note 

The guidance walks through each of these conditions and provides commentary and examples on each. It is detailed and helpful, but there are several key issues worth highlighting: 

•    The “charitable purpose soft opt-in” is separate from the existing “goods and services opt-in”. The guidance has a section on what charities should do if they want to use both together, but the practical reality is that charities will need to maintain separate marketing lists to record opt-outs separately.

•    The guidance stresses that the soft opt-in is not available if the information was collected by a third-party, such as an online fundraising platform or even the charity’s trading subsidiary.

•    The date of collection is also important – the new rules are not retrospective. The requirement that a marketing “opt-out” must have been offered when the data was collected means that, in effect, only details collected in line with the new rules on or after 5 February 2026, when the soft opt-in came into force, can be used. The guidance does provide helpful examples on how to address existing contacts, but in practice a fresh interaction with the supporter will be needed.

•    The guidance also provides examples on the thorny subject on how charities can determine whether an interaction with an individual constitutes an “expression of interest in” or “offer or provision of support” for the charity’s charitable purposes. This will boil down in most cases to the charity making sure it has a “reasonable basis” to reach that conclusion.

•    The guidance is also clear that the “sole purpose” of any direct marketing must be to further the charity’s own charitable purposes. “Charitable purposes” include asking for donations or other support, as well as providing information about the charity’s mission-related activities. But the guidance is clear that the soft opt-in cannot be used to promote other organisations, including other charities.

•    Finally, the guidance makes clear that even if the conditions can be met, the charity still needs to have a “legitimate interest” to send the direct marketing. Many charities will be dealing with supporters who are vulnerable or in high-risk situations. As part of the legitimate interest “balancing” test for the charitable purpose soft opt-in, charities need to consider the potential impact on supporters and any harm that the use of their information may cause, to assess whether the marketing is appropriate. 

More guidance to come for fundraisers… 

The Fundraising Regulator is planning to publish its own separate guidance “soon” on the use of the soft opt-in, in the context of fundraising. Until then, it is advising fundraisers to take care: “we urge fundraising organisations to read the ICO’s guidance and make sure they use soft opt-in in a way that is legal, respectful and maintains public trust and confidence.”