Welcome to our consultation response regarding charitable soft opt-in.

For decades, charities have been unfairly excluded from the world of soft opt-in. This is a peculiar legacy issue dating back to 2002 and the original EU directive which created what we all now call the soft opt-in (it always strikes me as funny how popular and entrenched the nickname soft opt-in is in data protection parlance given that it is not used anywhere in the legislation.) Now it has been – rightly – corrected by the UK government. [Interestingly, this change has not taken place in Europe and so, despite being a remainer, I can’t help but reflect that this is perhaps a moment where Brexit has created the opportunity for positive change.]

Unfortunately, that positive change seems at risk by the threat of unduly restrictive interpretation by the UK’s regulator. The ICO’s draft guidance needs to be changed to really enable positive and lasting change for charities in the UK. Our consultation response calls on the ICO to:

• Enable combining of messages and databases relying on both charitable purpose and commercial purpose soft opt-in;
• Catch up with the reality of data collection by charities in the UK by permitting use of soft opt-in where data inputs come from third party agents and platforms, like donation service providers, third party fundraisers etc;
• Create a de minimis regime, where smaller charities have a lighter compliance burden.

The collective thoughts, ideas and recommendations set out in this document are the product of hours of reading, study and debate by a wonderful group of contributors. Together we have wrestled with the new law and the ICO’s guidance and what it means for charities. In the furnace of healthy debate we have forged the ideas contained in this response none of which would have been possible but for the sacrifice, effort and attention of the contributors. To all of you: it was a great pleasure to chair this exercise on account of your candour, wit and commitment. Thank you for giving up your time and energy to help design the future of charity law in the UK. You are the bright, brilliant and bold leaders of your legal disciplines and I hope the ICO listens to your message which, at its heart, is designed to improve the regulatory environment in which every charity must operate. If even 1 of the changes we are recommending occur, the benefits of your work will be felt in more ways than you could possibly know. Well done to you all.

Yours,

Matthew Holman