The charitable soft opt-in ICO guidance has just landed.
For many charities, this is the biggest shift in supporter communications rules in years.
And our inbox and membership chat are already full of questions:
- Does event attendance count as expressing interest?
- What about volunteering, buying a raffle ticket, or clicking a link?
- Can we now contact people we previously couldn’t?
And just as importantly…Where are the grey areas charities need to tread carefully?
To help the sector unpack all of this quickly, we’re hosting a session with Mark Burnett from Hope & May.
Get access to the full webinar & 30 minute Q&A.
If you enjoyed this episode, don’t forget to hit follow and enable notifications so you’ll get notified to be first to hear of future podcast episodes. We’d love to see you back again!
And thank you to our friends at JustGiving who make the Fundraising Everywhere Podcast possible.
Transcript
Jade Cunnah: Welcome to the Fundraising Everywhere podcast, your go-to place for fundraising tips and inspiration. Love what you hear? Get more insights straight to your inbox. Subscribe to our email list for exclusive fundraising resources, early access to training, special discounts, and more. Just head on over to fundraisingeverywhere.com/podcast to subscribe.
Jade Cunnah: Now, onto today’s episode. Enjoy.
Cam St-Omer Donaldson: Hello, hello, and good morning, everyone. And welcome to Fundraising Everywhere in partnership with Hope and May’s webinar, Making Sense of the ICO Soft Opt-in Guidance: What it says, what it means, and what do we need to do about it? I’m Cam St. Omer-Donaldson, chief experience officer here at Fundraising Everywhere, and I’ll be your host for this morning before handing over to Mark Burnett, uh, CEO from Hope and May, who will be leading today’s session.
Cam St-Omer Donaldson: I know some of you have been here before, so welcome back again. And if you’re new, welcome to Fundraising Everywhere for the first time. You might be super used to hearing and seeing Simon, our co-founder, host these webinars, but I was so keen to do today’s, um, as a fundraising compliance nerd and enthusiast.
Cam St-Omer Donaldson: But also because I’ve been speaking with so many of our members and lots of charities across the sector about what does this mean? How do we digest this? How do we make sense of the new awaited guidance that has been released from the ICO? So I’m hoping that your questions and thoughts and thinking will be answered today, and you’ll be able to share kind of some of that thinking and where you’re at with the community in the chat box.
Cam St-Omer Donaldson: So thank you so much for joining, as I mentioned, whether you’re a long-standing Fundraising Everywhere member or joining for the first time. So just a couple of housekeeping bits just before we start. Um, some of you have already got to it. Uh, the chat box have been very active this morning. But please do pop in the chat and say hello, um, and let us know where you’re joining from today, your organization.
Cam St-Omer Donaldson: Be really, really great to hear you, uh, hear from you, rather, and say hello. Uh, next one is we’ll also be using Slido for our polls and Q&A throughout the webinar. So please do add your questions. There is a button just below the chat box. I believe it’s called Questions and Polls. If you click on that button, you can submit questions through the Slido poll that we’ll be using.
Cam St-Omer Donaldson: And the reason being is because that means that questions can actually be captured, and we can also use the up vote function so that if someone else has asked a question that you were already thinking, which is probably likely, we can make sure that that question’s at the top of the list, um, to be answered towards the end of the webinar as well.
Cam St-Omer Donaldson: If you run into any tech issues whilst you’re on the webinar this morning, it is recorded so you’ll be able to watch back first and foremost. But you can also just pop a little message in the chat box and the team, um, will do our best, uh, to help as well to make sure that you can get online. And just another big thank you to our partners Hope and May for supporting today’s event as well.
Cam St-Omer Donaldson: Um, so just a quick note actually as I mentioned about recordings. Recordings will be sent after the event or you can access them via the event page once you’re logged in. So if you’re a non-member and you’ve bought or you’ve registered for the, um, webinar today, you’ll be able to have 30 days to watch back this webinar.
Cam St-Omer Donaldson: And of course, if you are a member of Fundraising Everywhere, you have forever to watch back, to go back, to check your notes, to reflect as well to ensure that you’ve taken all of the amazing insights that Mark is going to share with us today. There is also a button for captions if needed. Just to the right, I believe, of your screen on your video you can press the CC button and turn on captions if that’s useful.
Cam St-Omer Donaldson: And your slides and certificate from today is also just below the video. So there’s a couple of buttons below the video. You can see one says Slides, one says Certificate. So of course after today’s webinar you can fill in the form for your certificate. Give us some feedback as well. Let us know how you found today’s session, what you’d love to see more of and you can post that certificate wherever you like as well.
Cam St-Omer Donaldson: And finally, if you are not a Fundraising Everywhere member yet, obvs what are you waiting for? Uh, we do have a free trial available so you can come join part of our community, get lots more like today’s webinar, hear more from others from other organizations and be inspired. There’s a little button just below again the video that says Free Trial, so do check that out as well.
Cam St-Omer Donaldson: I believe without further ado, um, Mark is with us, and I know that’s who you’d love to hear from this morning. Um, is Mark here? And I will hand over. Can. Thank you so much. I hope you can hear me okay. Yep, we can. Excellent. Morning, Mark. Well, thanks for having me. What a pleasure it is to be here today and to take you through the interesting guidance that the ICO have recently published around the use of the soft opt-in.
Mark Burnett: How will it change your fundraising? Will it change your fundraising? Let’s, uh, give you our interpretations of this guidance. So if you have read it, you may be a little bit confused but I’m hoping to clear some of that confusion up today. So just to lay the, uh, the scene, uh, we had our new Data Use and Access Act, which came out last year, and we’re starting to see the guidance now coming through to various changes that we are needing to consider.
Mark Burnett: And one of those, of course, is the soft opt-in, which came into force in February. Uh, the soft opt-in for charities, which essentially means that we can send electronic communications to supporters without using their consent, without gathering their consent. So it’s a bit like what you’ve been doing before, where you were sending offline communications in the post using your legitimate interest, so it’s kind of aligning itself to that.
Mark Burnett: So we will not, uh, necessarily need consent in the future. But remember and you will have uh … You’ll be familiar with these six conditions for processing personal data, uh, remain the same. So we must have established a a lawful condition before we get started gathering, uh, information.
Mark Burnett: So we’re moving from consent, uh, or maybe not, but if you’re using the soft opt-in, you’ll be moving from consent to legitimate interest. Legitimate interest will be your lawful basis upon which the soft opt-in, uh, will rely I think this is good news for the sector. It levels the playing field with commercial organizations have always been able to do this.
Mark Burnett: And so we’ve it seems a fairer, uh, way of of proceeding to me, and it also kind of makes that, that donor journey a little bit smoother. You know, we’re not gonna need to collect consent, and remember with consent, all sorts of things that we need to consider. You know, how long is consent valid for?
Mark Burnett: Do we need to refresh it from time to time? Probably. You know, were we really clear about what we were doing, um, and why, why we were gathering the data in the first place? So consent, as we’ve always said, a very high standard, a high bar for consent to apply. Maybe by not using consent in the future our risk of getting that wrong kind of reduces a little bit.
Mark Burnett: So maybe there’s a, a, a hidden benefit there, uh, that we’re not using consent in the future. But unfortunately like there always seems to be in these matters, there are some complexities because particularly in the charity sector, there are in fact two soft opt-in options that we need to consider, and we’re gonna really focus on that today to make sure that we’re clear, because if you’ve read the guidance, you won’t, I don’t think, be clear about that.
Mark Burnett: So let’s just see if we can unpick that. But we will d- potentially have two options to consider, and sometimes those options might be be used together. So again, we need to unpick that. So I think there are some complexities that we need to clear up. And I also know that some of you are really unsure about this, and that you feel it could create confusion and that people might complain because, they know that you didn’t collect their consent, so how comes you’re sending this information?
Mark Burnett: So I think that there needs to be some consideration around whether we’re gonna do this or not. Are we going to embrace this new, uh, opportunity or not? And maybe if you are on the fence a little bit, maybe testing the soft opt-in with a group of new supporters or customers might feel the right thing to do.
Mark Burnett: You know, you’re, uh, you’re spreading that risk a little bit whilst maintaining your current position using consent. Maybe we test it with a, a group of, of new supporters. Just an idea that might give you some feeling about the, uh, the future use of this particular mechanism So some, uh, some things we need to know.
Mark Burnett: The soft opt-in relies upon an expression of interest or support for the charity. So, for example this would probably cover volunteers who have clearly given up their, uh, valuable time to support the charity. But generally, an expression of interest is what we’re looking for, and the definition of that, according to the guidance, seems to be fairly broad.
Mark Burnett: It seems to suggest that almost any direct interaction with you, uh, would be an expression of interest. A couple of caveats there, which I’ll come back to, but it seems that if I’m expressing an interest, reaching out to you in some way or other, then that is an expression of interest. The personal data must be collected directly from the individual.
Mark Burnett: So, you know, that, that, uh, does away with the opportunity of, uh, perhaps acquiring data, uh, which I know you probably wouldn’t do anyway. But you definitely couldn’t use the soft opt-in for data provided by a third party, for example. Use of the data must be solely for the furtherance of your cause.
Mark Burnett: We’ll come back to that ’cause that’s an interesting concept, and of course, most importantly, it only applies to new donors. So you are gonna have to think about how you segment your data in the future, clearly dividing those currently, uh, supporting, uh, the organization and those probably in the past as well, and those in the future.
Mark Burnett: So it only applies to new donors. And individuals must be able to refuse from the very beginning for you to do this. So clearly we’re gonna need a, a statement of some sort that says, you know, “We’ll be using the soft opt-in,” or, or, uh, in, in other words, uh, and giving them the, the choice to decide whether they wish to continue or not.
Mark Burnett: And of course, thereafter, every communication that you send will need to have an opt-out, uh, in it. But, no, I think that’s great. I think that’s really clear and, uh, and you probably do that anyway in your existing communication. So a few things there to consider. Most importantly, what is this expression of interest?
Mark Burnett: I know we’ve, uh, you know, been talking to many of you about that over the last few months, and I think the good news is it’s a fairly broad definition. It doesn’t seem to exclude very much. So I think, again, we’ll be thinking about, you know, what’s our case for the definition of an expression of interest Right.
Mark Burnett: So these two options we need to be really clear about. There’s the co- commercial opt-in and the charity opt-in. So the commercial opt-in is to only be used for the purposes of the sale of goods and services. So if you sell products and services to individuals, then you’ll be using the commercial opt-in.
Mark Burnett: However, if you are promoting your cause, then you’ll be using the charity opt-in. Now, we will unpick this further, but straight away I’m thinking this is confusing. Uh, what is the difference between promoting my cause and selling a product or service? We need to be really clear about this because we’re gonna have to update our policy sooner or later to say, “Yes, we’re using both, and this is when we use it and when we don’t use it for various purposes that we’ve identified.”
Mark Burnett: Clear boundaries. Data gathered using the commercial opt-in cannot be used to promote the charity’s cause, only the charity soft opt- opt-in can be used for that. So data can’t be shared, for example, between your trading company and the charity or vice versa. Again, a little bit confusing. Uh, if you’re, um… I suppose the best example of this is if you have charity shops, uh, then you’ll be using the commercial opt-in but you couldn’t then provide, if you had the p- the person’s information, you couldn’t provide them with information about promoting your cause, which seems to create some opaqueness, doesn’t it, in, in, uh, i- in, uh, in this subject of are we selling stuff or are we promoting the charity’s cause?
Mark Burnett: So it’s a little bit confusing. I’m gonna, I’m gonna hopefully clear this up for you, but no, no s- no sharing of data between the two legal entities, uh, can occur. So if you do have shops, you’re not gonna be sh- sharing any information you gather from the shop with the charity for the purposes of promoting the cause, if that makes any sense at all.
Mark Burnett: So here’s, I think, the first confusing part of this guidance. When you– when someone buys something from you, usually that would mean that you use the commercial opt-in. I think that’s, that seems to make sense from what we’ve learned so far. Uh, we’re selling products and services, must be a commercial opt-in.
Mark Burnett: However, the guidance says that some purchases are clearly understood by the buyer as a way of supporting the charitable purpose. These may include things like membership, sponsorship, raffles, or tickets to an event. So straight away, confusion. We have purchases, clearly purchases but, uh, the guidance is suggesting that if I did buy membership from you, for example and I believed that was for the charitable purpose then you could use the charitable soft opt-in rather than the commercial opt-in, even though it’s a purchase.
Mark Burnett: So in other words, the charity soft, soft opt-in rather than the commercial version may apply to promoting your cause by selling products and services if the individual believes it’s a way of supporting your cause. Must be directly with the charity, of course, but this seems to create a little bit of confusion about which one I should be using, and I think- And it’s a question for you really.
Mark Burnett: When you sell membership, sponsorships, raffle tickets or tickets to events, are they in support of the charitable cause? Because if they are, then you’ll be using the charity soft opt-in rather than the commercial soft opt-in. Two examples that the, that the guidance gives. One is that charity shop. If I went and bought a jumper from a charity shop, was it purely transactional or did I go and buy it particularly because I wanted to support the charity?
Mark Burnett: Interesting question. You may have your view on that. The other example they give is I’m strolling down the high street, I see a cafe which is clearly operated by a charity, and I go in and buy my coffee. Am I buying my coffee purely because I’m thirsty or am I buying the coffee because I want to support the charity, uh, in its endeavors?
Mark Burnett: You know, uh, I think that latter one, if there was, say, a Costa Coffee and a charity cafe next to one another, and I chose the, uh, the charity cafe over the Costa uh, Costa shop have I made a conscious decision to support the charity there? And yes, I was thirsty, but, uh, I chose the charity cafe for a reason.
Mark Burnett: Uh, again, you’ll have your, you’ll have your views on that matter Even more confusing is the opportunity to use both opt-ins at the same time, both the, the charity opt-in and the commercial opt-in. Someone buys an, uh, an entry ticket to a, to visit a historic mill operated by a charity. The charity is satisfied that the person has bought a product or service and also provided support to the charity’s heritage preservation work in this particular instance.
Mark Burnett: Little bit confusing, isn’t it, that, uh, you could be using both. If you do believe that this is the right way to go, you’d have two opt-out boxes, one for the commercial opt-in, one for the purchase, and one for the charitable cause, the, promoting the charitable cause. Seems to add a layer of complexity frankly unnecessary, but that’s where we are with it.
Mark Burnett: So there are a few options there that I think we need to consider. Are we selling products and services which may be considered to be transactional in one sense, but in aid, uh, and support of the charity? If so, maybe we’re gonna use the soft opt-in for charities, the charitable cause. If it’s purely transactional in your opinion then we’ll be using the commercial, uh, opt-in to to, uh, process that information.
Mark Burnett: So we’ve gotta get our heads around this but, you know, I’m, I’m not gonna tell you what to do of course, but I think that most of the products and services that you provide, such as membership, such as sponsorships, raffle tickets, events, uh, tick-tickets to events, are likely to be for the purpose of supporting your charity and therefore soft opt-in for charities is gonna be, I’m guessing, your predominant choice over the purely transactional commercial opt-in.
Mark Burnett: But you’ll need to make that, that, that decision Interesting question for you here, uh, and I’ll be really interested to, uh, hear if you’ve got any questions around this one. A supporter makes a regular monthly donation, they’ve been doing that for quite some time, and you currently, of course, rely upon their consent.
Mark Burnett: But when you pull the trigger and make, uh, and make the decision to use a soft opt-in, when they make their next donation, have they expressed an interest in your cause? I.e., is it possible that we could migrate people from consent to the soft opt-in for charities by, uh, an indication of their support, i.e.,
Mark Burnett: the next time they support us, is that going to be our opportunity to start using the soft opt-in? Which remem-remember, we’ve already said comes along with less baggage, you know, there’s less, uh, issues in maintenance and refreshing things. As long as you’ve got that, that, that opt out on every communication, arguably, we don’t need to keep refreshing our consent, uh, as we used to.
Mark Burnett: Our position, uh, with… Our relationship with that individual, uh, it
Mark Burnett: could potentially last longer if we believe that, uh, that person still was interested in hearing about what we do and how we go about it So I think, uh, we need a plan, don’t we? We need to decide, uh, which, if we’re gonna use it at all, which soft opt-in applies to which purpose. So is it transactional?
Mark Burnett: Is it in support of the, uh, of the charitable organization? Is it that hybrid of both? We might, might need to consider that. And I think because we’re now using legitimate interests for electronic communications rather than just for offline, uh, marketing and fundraising, we need to do a legitimate interest assessment to make sure that we’re happy with our decision-making.
Mark Burnett: And that’s a great idea because that pulls everyone into the room, uh, with their opinions. And, uh, and I know from my conversations recently that there are lots of opinions about this, both good, you know, positive and not so positive. So let’s have everyone in the same room. Let’s talk about our feelings about, uh, whether this is a balanced approach our interest to, uh, to raise money, of course, and to sell products and services vis, uh, the interest of the individual to do that, you know, to, uh, uh, to hear from us.
Mark Burnett: Is there a reasonable expectation on behalf of the individual, uh, that we should be doing this and sending their information– uh, our information and using their personal data? So do your legitimate interest assessment, and then update your policy, making a clear case for whatever it is that you’re going to do.
Mark Burnett: You know, you– it may be that you’ve considered the soft opt-in and decided not to do it. Maybe a statement that confirms that you will continue to be using consent from now on, or the soft opt-in for charities, the commercial opt-in, or the hybrid of the two. Make a good, strong case in your opinion for, um, for clarity, uh, and it’s in writing, it’s in your policy.
Mark Burnett: Then you’ve got to update your privacy notices to make sure that your audience are informed about what you’re doing. And this is quite key, isn’t it? For those of– especially for those of you who are a little unsure, on the fence about this, wanna be explaining ourselves to individuals, placing that in the public domain or however you might circulate privacy information and making sure that people are aware of what you’re doing and, uh, the condition in which you’re applying uh, you know, processing their personal data, how they can change their minds and, um, and make sure this all works from that point of view.
Mark Burnett: So privacy notice, your privacy information needs to be really clear. And lastly, I think Making sure that everyone in the team is really clear about what we’re doing or not doing and making sure that because they’re informed, they can then explain it. So, you know, if there is a query from a donor, uh, or inquiry that anyone in the team can explain these changes clearly to them.
Mark Burnett: “No, we didn’t need your consent because we’re using something called the soft opt-in, and that came about because you expressed an interest in what we do. You can change your mind, of course.” That kind of thing, making sure that, uh, we can deliver a clear message to people and everybody in the team is really aware, uh, of what, uh, of what’s going on.
Mark Burnett: So unfortunately, this will mean more management of our data, I think. Clearly, we’re gonna have to be able to lay our hands on different groups of different types of donors. So your existing donors, which may be unchanged, although you might migrate them because of their new expression of interest. But essentially your old…
Mark Burnett: your existing uh, donors and those that have maybe have lapsed, you’re gonna carry on in the same fashion, uh, that you currently are using consent. But your new donors they might enjoy the soft opt-in, this more relaxed approach to processing their information. Customers, transactional customers, you’ll be using the commercial, uh, opt-in for goods and services, and you might also be using consent in some circumstances where you believe, uh, it’s the right thing to do because neither of these these two soft options really work for you, uh, or you believe there should be a clearer uh, defined con- uh, condition for processing their data.
Mark Burnett: So I think some segmentation, you need to look at your CRM, see how could this be done. I’m sure, uh, most of the CRM providers are thinking, “Right, we need some extra functionality here to make sure that our clients can segment their data clearly,” you know, between opt-outs, opt-ins. And I think ultimately we are moving, if you adopt this idea, you’re moving from an opt-in model to an opt-out model which may well mean that you’re talking to more people in the future A few footnotes for you.
Mark Burnett: Don’t rely upon a refer-a-friend. Remember from the very beginning, we said we have to acquire the data directly from the individual. So asking a friend to, put the good word out for you and send you all their names and email addresses just is not gonna work for the soft opt-in. But if you were to equip that person with the right information th-that they then send to their friends, if their friends then contact you directly, then I think the soft opt-in can apply.
Mark Burnett: So, uh, get it that way round, I think it works. And also, most unfortunately, data gathered by third-party platforms will not apply to the soft opt-in. It has to be that direct interaction. However, and I’ve worked with a few platforms now third-party consent, not the best of consents, that’s where someone gathers consent on your behalf, could still apply.
Mark Burnett: So the platform says, “Would you like, uh, us to share your data, uh, with the charity that you are supporting? Uh, if so, please tick this box, consent to that,” uh, I think is a version of consent. Not the best version because you didn’t actually gather the consent yourself, but it’s still a version of consent.
Mark Burnett: But I think if you’re relying on that, be careful, check the wording the third party are using, and if you are happy with that, when you do get the, uh, get, uh, the, the ability to contact the individual, re-reconfirm consent at your earliest opportunity. So it’s really a bit of a shame really that third-party platform has been excluded.
Mark Burnett: Also, some ways that you might be gathering soft opt-in in the future, uh, some research has been done. Uh, we could have a pre-ticked yes box, which I could untick if I wanted, so it’s kind of the opposite of consent. I’m assuming that you uh, you know, due to your expression of interest, that you’re interested in gathering, uh, in, in receiving information from us.
Mark Burnett: I can untick it, of course, that would be my preference. Uh, we would never have done a pre-tick box before, but m- now that would be legitimate, I think. The, um, interesting, uh, the research I mentioned indicates that mandatory options, so that’s two boxes, yes and no, I have to tick one of them, was actually, uh, a big success and, and gathered about 30% more yeses than than having just one box which was pre pre-ticked.
Mark Burnett: Consider mandatory options around a yes or a no, and if you can’t do any of that, maybe you, you’re, uh, you just haven’t got the budget or the IT capability to do that just at the moment, ICO says not best practice but a statement with a clear way to opt out with some contact details would also suffice.
Mark Burnett: So, if that’s all you could do, then that’s what you’re gonna do. But the other two might be, might be better, uh, options
Mark Burnett: Also bear in mind that a number of other changes brought about by the Data Use and Access Act and one of those is how to deal with complaints. Quite an important change. Just in case you don’t know up until now, if I wanted to complain about you, I could have gone directly to the ICO, uh, and they probably would have written to you to ask you to explain yourself.
Mark Burnett: But now I can’t do that until I’ve come to you first. So welcome complaints. Make sure they’re documented and that you’ve got, uh, a record of when and what you did and so on, before the person can then go to the ICO because, uh, I presume the ICO are gonna ask for evidence of the way that you dealt with this complaint up until now.
Mark Burnett: So make sure that, that you can hear those complaints, and the guidance on that does say I can complain in any way that suits me, verbally, email text, phone, in person, or even on social media. So make sure that you can hear those complaints and make sure that you deal with them a-appropriately and, um, and, you know, and document the, uh, the outcome of all of that So we have some time now for Q&A.
Mark Burnett: Just one thing I wanted to say before we did that was the issue of newsletters. So going back to the question of whether we’re using the commercial opt-in, purely transactional, or whether we’re using the soft opt-in for charities, which of course is the promotion of our cause, it strikes me that there’s a complication there, unless we’re using the hybrid version, that if I was a purely transactional customer, then I don’t think you could send me your newsletter which promotes your cause.
Mark Burnett: So it could be that you need two different types of regular communication. Uh, it might be that, uh, on the one hand, for purely transactional purposes, it’s a catalog of things that I can buy. Uh, and for the ch- cha- for the charity soft- soft opt-in, I guess it’s your classic newsletter informing me about progress, what you’ve done, what you intend to do in the future.
Mark Burnett: So it just strikes me that we’ve gotta be careful that we are not, um, u- unless we’re going for the hybrid, that we’re not over- uh, overlapping those two distinctly different types, uh, of audience, uh, and making sure that we’re not sending just, one comm which is common to all. But, as I said earlier, if you believe that you are selling products and services that essentially are funding the cha- the charitable purpose, then I think that creates that gray area that you may feel you can take advantage of from that point of view.
Mark Burnett: So in summary, I think this is good news. Uh, unfortunately as o- is sometimes the case, the guidance isn’t quite as clear as it could be. I do think that you will be predominantly using the charitable opt-in over the commercial, uh, arrangement. But you do need to carefully consider whether you think things like, uh, a cup of coffee in your cafe is purely transactional or not, uh, and in, in in support of your, uh, of your charitable cause, and of course, making sure that we’ve documented that for future scrutiny should we, uh, should we be asked.
Alex Aggidis: Thank you so much for listening to the Fundraising Everywhere podcast. If you’re enjoying this podcast, why not share it with a fundraising friend? And if you would like to give us a little like or subscribe, it really helps more fundraisers like you find us. Thank you so much. See you next time
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