FPS FFS

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.

Comments

  1. Rohan Putter says:

    Gosh Tim, couldn’t agree more and yet also completely perplexed by some of your statements.

    Firstly, completely agree that FPS is not needed and just generally a ridiculous idea. Charities should be subject to the same marketing legislation as any other organisation. This means adherence to TPS, Data Protection and PECR. If you don’t want a charity to contact you, tell them. If they fail to adhere, speak to the ICO and hopefully they will take action (including financial penalties as appropriate).

    However, where I take more issue is with some of the slant of your article and your recollection of events. The question as to whether a relationship (in the form of donor/supporter) constituted enough consent to avoid TPS screening was raised to the ICO in 2010 and their guidance affirmed that it was. While I respect this has now changed, I think you should take issue with their guidance, rather than charities following it? That guidance has now changed and my organisation and every other I know have made immediate, and unequivocal changes. We are also busy planning changes to implement full collection of Opt In consent across channels.

    That you talk so colourfully (negatively?) about the sector is disappointing. All we are asking for is the ability to market to individuals as any other commercial organisation might. Is that really so wrong?

  2. The ICO has never published guidance that says that a donation is the same as consent. Even if the ICO published such guidance (and they didn’t), the law is clear that consent is not the same as a donation, and no objective reading of PECR could possibly give that interpretation. Someone saying something at a conference (which is what I believe happened in 2010) does not justify the unlawful actions that have followed. The guidance that confused consent with donation was produced by and for fundraisers, and not by the ICO. The relevant sections of PECR are a few paragraphs which take 10 minutes to read, if that.

    My problem is that the rogue charities and fundraisers do not act as any other commercial organisation might. They act like the worst commercial organisations – the PPI, solar panel and cold call blocking merchants. The worst examples target the elderly and vulnerable, trade data relentlessly without consent or fair processing, ignore opt-outs and flout the TPS. The vast majority of commercial organisations act with more integrity than the rogue charities that have been exposed. It may be naive to expect charities to behave better than the average company, but I think most people have that expectation. It’s disappointing therefore to see some large charities acting in the unethical way that recent events show.

  3. Rohan Putter says:

    On the point about guidance:
    http://www.institute-of-fundraising.org.uk/library/telephone-fundraising-symposium/telephonesymposiumnotesmarch2010.pdf

    As described it was a grey area – and indeed judging a relationship to consent is very different to simply saying anyone who has donated. Regardless of the situation, with guidance like this is it not possible that charities were treading a difficult line with good intentions? Behind every decision there are lives at stake, whether society chooses to acknowledge that or not. That doesn’t mean we can ride roughshod over supporters and the law, but it does mean that on assessing options and courses of action we also balance the cost to our beneficiaries.

    On all the situations you describe above (“worst examples target the elderly and vulnerable, trade data relentlessly without consent or fair processing, ignore opt-outs and flout the TPS”) I suspect you are again wide of the mark:

    I know of no charity targeting the elderly or the vulnerable – indeed, a lot of time and thought is spent working out how to accurately identify and protect them through channels like the phone where it can be difficult to always pick up (interestingly it was telephone fundraising agencies that spearheaded these measures – it is also great to see the resources Alzheimers have recently made available).

    On the other issues of trading data without consent or fair processing, ignoring opt-outs and flouting TPS – legislation and sanctions exist for these measures and should be used to the fullest extent against charities and commercial organisations alike where these are broken. That is simply not acceptable.

    In some of the high profile stories organisations have clearly not had strong enough controls, and on this they will have failed – it is for the ICO to assess what sanctions should be applied, regardless of whether these were accidental or wilful (though sanctions for either option should be different).

    I’m still curious as to why you are so certain that organisations set out with such negative intentions – its not an attitude I’ve ever experienced in talking to many fundraisers over the years.

    • Exactly as I said – this is not ICO guidance, this is guidance produced by fundraisers, who have a commercial incentive to maximize fundraising income. It was, and is, flawed and irrelevant, especially when compared to the law itself.

      If you are unaware of the targeting of the elderly and vulnerable, perhaps you should look at the widely reported examples of Olive Cooke and Samuel Rae, who are not isolated cases, but exemplars of a mindset that sees only the funds, and not how they are raised. Many charities do not share this mindset, but some do and I don’t see why you are so surprised that I regard them negatively. \

      I doubt you will agree, but I have written about some of these issues before, and the examples I quote may at least help to explain my attitude:

      On charities: https://2040infolawblog.com/2015/07/11/the-cold-war/

      and

      On fundraisers: https://2040infolawblog.com/2015/06/19/a-very-bad-call/

      You’ve told me to judge charities as commercial organisations, which I think is very helpful. Commercial organisations is what some large charities have become, leaving behind their voluntary, philanthropic origins. Even so, the work that charities do does not excuse the way some of them raise their funds.

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