by | Sep 23, 2015 | Data Protection, Direct marketing, ICO | 4 comments

Following some fine investigative work, the Daily Mail was today content to declare “VICTORY” in its battle against rogue fundraisers and their equally shameless charity employers. The Mail’s apparent triumph is the publication of a government approved review by the National Council for Voluntary Organisations and chaired by Sir Stuart Etherington, the NCVO’s Chief Executive. There are a variety of recommendations about the regulation of charities, but as I am not an expert, I don’t know whether they improve matters. One eye-catching notion is very much on my territory, and if I wanted to be unkind, I would suggest that it was an outrageously opportunistic stitch-up.

The review suggests the creation of a Fundraising Preference Service, which would allow participants to “reset” their relationship with all charities. Anyone signed up to the ‘FPS’ could not be contacted by charities, thus finally lancing the boil of charity pestering. The report observes “At the moment there is no way to ‘opt-out’ of being approached by fundraisers other than contacting the organisation concerned directly and relying on their good will to unsubscribe an individual.” This statement is so wilfully incorrect, one might almost call it a lie.

The Telephone Preference Service applies to any organisation – including charities – who wants to call any person for marketing purposes. Exactly the same model proposed for the Fundraising Preference Service already applies to the TPS – nobody can call you unless you specifically tell them that they can. Some large charities routinely ignore the TPS, but there is the possibility of a civil monetary penalty under the Privacy and Electronic Communications Regulations (PECR) for breaching the TPS requirements. Moreover, no opt-out is required for email or text, because marketing can only happen by those methods on an opt-in basis.

The water is slightly more murky for postal marketing which is not covered by the stricter rules of PECR, but only if a charity is not a member of the Direct Marketing Association, which requires its members to be members of the Mailing Preference Service. The MPS is imperfect, but it already exists.

A person does not need to rely on the “goodwill” of a fundraiser or charity if they demand an opt-out from marketing. Section 11 of the Data Protection Act gives every person the right to demand that marketing cease or not begin – to ignore such a request is unlawful. Goodwill does not come into it, although Section 11 is not mentioned anywhere in the review.

It gets worse. Rather than the maximum £500,000 civil monetary penalties or enforcement notices backed by the threat of prosecution available under PECR for breaches of the TPS, the Etherington Review press release offers this terrifying alternative “Charities which seriously or persistently breach the rules would be named and shamed and could be forced to halt their fundraising until problems are resolved.” They may even be sent to bed early without any pudding. The review suggests an unnecessary addition to the existing framework, with weaker penalties for transgressors.

No version of the Fundraising Preference Service makes any sense. Assume for a moment that existing laws are left entirely as they are – charities and fundraisers would be obliged to screen against both the TPS and the FPS, as well as the MPS if they are DMA members. I have no problem with this if that’s what they want to do, but in reality, I suspect many of the charities who currently ignore or pay lip-service to the TPS would use the new system as an excuse to forget it altogether.

But what if it was worse? Couldn’t the charities argue that with their brand new preference service, clearly designed to prevent the menace of unwanted charity marketing, these other blunter tools were not required? What would be the point of charities doing double or triple-screening? If the Fundraising Preference Service gets any traction, I guarantee that somewhere along the way, the suggestion will come that charities should be exempted from the TPS and the MPS. Why not cut out the unnecessary bureaucracy? Once charities were exempted, there would be a bonanza, an orgy of calls and contacts to everyone not registered, all perfectly justified, so long as the charities can find a minister daft enough to believe that PECR should be amended to reflect their new system.

*Harry Hill look to camera*

If the FPS is to to exist, I can only think of two ways in which it could work fairly. The first is that everyone who is already registered on the TPS or the MPS should be automatically migrated onto the FPS. If people really don’t want to be contacted by other organisations, but do want to hear from charities, they only need to tell their favourite good cause this good news. Alternatively, the FPS could be an opt-in list of people who actively do want to hear from charities, and everyone else must be left alone. But I don’t think the FPS should exist at all. At best, it is a massively ill-informed gimmick, and at worst, a Trojan Horse for one last delirious orgy of spam. Much simpler alternatives exist within the current law, and I can set out very easily how the problem can be solved.

  1. The rogue charities finally stop pretending that they do not understand the law. They accept that cannot call someone who is on the TPS, even if the person has donated, even if they are regular donors. Charities cannot call them unless they say, explicitly and without any persuasion or prior contact, that they actively want the charity to contact them, and they specify the method by which they want to be contacted by. This opt-in can only be obtained by the charity, and not by any agent or contractor. In the absence of a freely given opt-in, charities never contact anyone on TPS again. They find ways to generate income that do not breach the law.
  2. The Mailing Preference Service – which already exists after all – is made statutory for charities (in fact, it should be made statutory for all organisations).
  3. The Information Commissioner identifies a few high profile charity miscreants. To avoid the outcry that might (only might) result from a monetary penalty that hoovers up charity donations, they use the Enforcement Notice method. Force the chosen few to respect the TPS, or mail opt-outs, or require them to get explicit consent before sending texts. Make it clear that if the notices are breached, as far as possible, Section 61 of the Data Protection Act will be used to prosecute the senior officers of the charities as well as the charities themselves. Alternatively, bite the bullet and issues some CMPs. Let the targets howl, ride the inevitable bleating of the fat cats, then see what happens afterwards. If charities had to explain why their fundraising tactics resulted in large donations to the Treasury, I suspect those tactics would end.

The problem of charity marketing would never have become so out of control if the Information Commissioner had ever taken any action to stop it. But nearly all of the ICO’s DPA enforcement is on procedural or security issues – they almost never challenge something that is core to an organisation’s business model. They have done this under PECR, but only for the shady PPI and Cold Call Blocking merchants. PECR enforcement on the charities will cost them money, and I fear that the ICO lacks the nerve. The wayward charities have operated with impunity and their unlawful activities have generated income. The FPS is a self-serving wheeze that is not the answer – any charity that will not voluntarily comply with the existing system will happily flout this new one. Before the Fundraising Preference Service goes any further, the ICO has to act firmly and decisively, or the problem of rogue charity marketing may get worse.