Rethinking Consent for Direct Marketing
If you’ve ever tried to navigate the world of direct marketing and data protection, you’ll know it can feel like trying to walk a tightrope. For many organisations, especially charities and smaller teams, consent has long been the go-to basis for direct marketing. But what if I told you there’s another option – one that’s not only perfectly lawful, but arguably more practical, flexible, and better suited to your goals? Let’s talk about legitimate interests.
The Most Flexible Lawful Basis?
The Information Commissioner’s Office (ICO) describes legitimate interests as “the most flexible of the six lawful bases”. It allows organisations to process personal data when it’s necessary for a genuine purpose (provided that purpose doesn’t override the individual’s rights and freedoms), and where the individual would reasonably expect it. Unlike consent, it doesn’t require a tick box, but it does require thoughtfulness, transparency, and documentation.
And yes, the ICO explicitly recognises direct marketing as a legitimate interest. That’s not just opinion – it’s written in black and white in the ICO’s guidance. So why are so many organisations still wedded to consent?
What You Need to Do
If you want to rely on legitimate interests, there are some clear steps you need to take:
- Conduct a Legitimate Interests Assessment (LIA): This is a simple balancing exercise where you consider your purpose, the necessity of processing, and whether it might negatively impact individuals.
- Be transparent: Your privacy notice should clearly state that you’re relying on legitimate interests for direct marketing. You must explain what the interest is and how someone can object.
- Respect the right to object: People always have the right to say no to marketing, and if they do, you have to stop.
It’s not a shortcut – but it is a lawful and pragmatic route that puts decision-making back in your hands.
The PECR Soft Opt-In: Small but Mighty
Of course, marketing by email, telephone, or SMS also brings in PECR – the Privacy and Electronic Communications Regulations. For organisations that use consent, this is often where the frustration builds. But PECR includes a lesser-known gem: the soft opt-in.
This allows you to send marketing messages to existing customers if:
- You obtained their details during a sale or negotiation for a sale.
- You’re marketing similar products or services.
- You gave them a clear chance to opt out when you collected their details – and in every message since.
This offers real value – but until now, it’s only applied to commercial organisations. The law has left charities out in the cold. That’s about to change.
What’s Changing?
The proposed Data (Use and Access) Bill introduces a promising update: it aims to extend the soft opt-in to include fundraising. You can read more about the proposed changes in my previous blog, but in short, it means that charities could soon rely on the soft opt-in to contact donors or supporters without needing fresh consent every time.
If passed, this change would be a game changer.
It would allow charities to re-engage warm audiences, grow their supporter base, and share their impact, all without falling into the consent trap. Legitimate interests could finally be used to their full potential, with PECR no longer acting as a blocker for direct marketing and fundraising.
The Bigger Picture: From Consent to Legitimate Interests
Switching from consent to legitimate interests for direct marketing doesn’t mean abandoning respect for your audience. It means reclaiming flexibility. It means building smart, lawful systems that actually work for your organisation. Imagine…
- Being able to market to people who already know and like you.
- Avoiding unnecessary drop-off caused by consent fatigue.
- Being transparent, but not paralysed, by privacy obligations.
- Reaching more people with your story, your work, and your values.
This isn’t about pushing boundaries, it’s about using the tools the law already gives us, in a way that’s fair, proportionate, and effective.
Get In Touch
If you’re a cultural organisation looking for tailored support, plain English policies, or practical training that empowers your team, we’d love to help. Get in touch for a free 30-minute consultation.