A few weeks ago, I heard someone on the radio talking about why American bankers are prosecuted and imprisoned (sometimes), whereas British bankers almost invariably are not. The commentator said that American banking regulation is rules-based, whereas British banking regulation has historically been principles-based. Therefore, the American system is more black and white and it’s easier to cuff someone, as compared to a system that requires interpretation and analysis.
The same is true of the difference between Data Protection and the Privacy and Electronic Communications Regulations (PECR). Although Data Protection has some concrete rules (accuracy, the need for clear retention schedules), most of them are subject to interpretation. Imagine the delight of people I train when I tell them that there is often more than one correct answer, and all they need to do is explain why they think what they think. They love it.
PECR is different. PECR is rules. There are some areas for argument (for example, what counts as a ‘similar’ product or service when using PECR’s version of the offside rule, the soft opt-in). But most of the direct marketing section of PECR can be boiled down to rules. Texts and emails are opt-in. Phone is opt-out subject to screening against the TPS. Faxes are don’t be so stupid nobody sends marketing by fax these days. There are a lot of misconceptions around PECR; I read in The Times a few weeks ago that the charity exemption from the TPS was to be removed, even though it has never existed. Trawl the forums and comments of marketing websites, and you will find a widespread belief that customers can be considered to have opted in to marketing automatically, even though this is nonsense. However, because of all this hogwash, the application of the PECR rules can cause panic in the marketing world.
This week, I was sent an email that has been circulated to a variety of charity clients by a marketing company that specialises in making fundraising calls. It was sent after the Fundraising Standards Board (FSB), a self-regulating body for fundraisers, recommended changes to the FSB’s code of practice. Bearing in mind that the FSB code is just an industry standard, it’s not a big issue. The Direct Marketing Association’s Code of Practice is actually stricter than the law, and so is an entirely good thing. The tone is generally depressing. Having mentioned the tragic death of Olive Cooke, the email talks of “the continued focus on the treatment of vulnerable people, all of which can be considered valid points to consider improving“. That’s right: the treatment of vulnerable people is a ‘valid point‘ to ‘consider improving‘, but that not what they’re worried about. There are areas of “extreme concern” that they really want to talk about.
The first issue of extreme concern is a proposed change to the FSB code that states that fundraisers cannot call anyone on the TPS unless they have given clear permission to receive calls. This is because “The Information Commissioner’s Office has confirmed that it is not sufficient to assume that a TPS registered supporter has given consent to receive calls simply due to the fact that they have made a donation.”
The marketing agency says in bold type: “This potential requirement to TPS, prior to calling, is extremely alarming and could have devastating consequences for the future of telephone fundraising”. Bear in mind, it has been a requirement to screen all marketing calls against the TPS since the regulations came into force in 2003. There is no charity exemption, no existing customer or donor exemption; those words or concepts simply do not appear. The email talks a lot about ‘warm calling’, which is a marketing term that refers to contacting people with whom you have a relationship. Warm calling has no relevance on the PECR rules at all. It is a red herring. If I am on the TPS, you can’t call me unless I have given you consent. Consent cannot be inferred from another action – either I have consented or I have not. You can count me as a sceptic on the issue of tick-boxes and whether people have truly consented in many cases, but to bring in the concept of warm calling strongly suggests the absence of any meaningful consent at all.
The marketing agency has two solutions, one ridiculous and one concerning. The first is to lobby the Institute of Fundraising with “extensive evidence of the damage this would do”. In other words, keep unlawful wording in a non-statutory code to create the illusion that warm calling is legal. The lack of understanding for the legal framework they are working in is remarkable. The code is irrelevant – the fact that an industry code is wrong make no difference to the law.
The second suggestion (again in bold type) is unacceptable: “contact every donor you do not have explicit consent to contact by telephone, whilst we have the opportunity, and get their expressed opt in”. If the charities already have consent to call TPS registered people, they don’t need to call them again. If they don’t already have consent, then calling them to get their consent is in itself a breach of PECR. All of these proposed calls would either be a waste of time or unlawful, and while the agency generously wants to ‘share the cost of these calls’, I doubt that they will be made at a loss.
The second recommendation to cause ‘extreme concern’ to the agency (rather than the misery and inconvenience they might be causing to the people they call) is a recommendation that the industry practice of making three donation requests during the course of a call could constitute ‘pressure’, rather than ‘reasonable persuasion’. The email goes on to set out the success rate of successive asks, with a 50% success rate on the third ask. The idea that the number of times the caller might ask for money during a call might be restricted to just two is anathema: “this would affect the whole of telephone fundraising”. In other words, we’ll lose money if we’re not allowed to pressure people.
The email ends with a touching moment of self-doubt: “We do also appreciate you may believe our email is driven by this agency’s self interests”. That thought didn’t cross my mind. Not even for a second.
There is a legitimate debate to be had about the morality of fundraising tactics, but only within the law. If chuggers are licensed to operate on public streets, then how they act is more about ethics than law. If charities and their agents have consent to call TPS-registered people, or they cold call people who aren’t on the TPS, the techniques that they use are an issue of morality. There is a strain of “end justifies the means” thinking in some charities that, in my opinion, can drag them down to the PPI, accident-that-wasn’t-your-fault level of marketing. How they square this with their charitable aims is a matter for them. I don’t think that charities should pay agencies to use high-pressure sales techniques on vulnerable people, but if it isn’t illegal, that’s just my opinion.
But the law is the law. A charity (and a marketing agency paid by them) cannot call someone registered on the Telephone Preference Service unless they have explicitly said that they (i.e. the specific charity making or instigating the call) can do so. A charity cannot call someone on TPS to obtain consent to call. There is no exemption, no loophole. An industry code of practice is irrelevant to this, whether it is right or wrong. Any charity which goes along with this is not just acting irresponsibly or selfishly: they are breaking the law. Any such calls should be tackled by the Information Commissioner as mercilessly as the spam texts and calls from claims and double-glazing companies that are their usual fodder. Indeed, there is a strong argument that Wilmslow should intervene to prevent any such calls from happening.