Consenting adults

Around two months ago, the Etherington Review into charity fundraising and governance published a series of recommendations about the way the sector should be run. The most eye-catching and ridiculous is the Fundraising Preference Service, which I wrote about at the time. The reaction to the FPS from charities has been almost universally negative, with a series of articles appearing in charity publications and on charity websites, all condemning the idea that the public should be able to stop communications from charities.

There is nothing in Data Protection, the Privacy and Electronic Communications Regulations (PECR) in general or the Telephone Preference Service (TPS) provisions in particular that stops a charity from contacting a person who wants to be contacted. The FPS is non-statutory, and so cannot change it. Since 1995, Data Protection law has been built on a requirement that any contact based on consent requires a freely given, specific and informed indication of the subject’s wishes. That’s what the Directive says, so any claim that somehow the upcoming DP Regulation represents a significant shift in how consent works is exaggerated. The problem for some charities is they have ignored this. When I make a donation, that is a freely given, specific and informed indication of my wish to make that donation. If the charity wants to call me, or text me and rely on consent, they need a freely given, specific and informed indication that I want to be called.

The current practice of charity posters that ask for a quick £3 or £5 text donation for a specific cause are a classic example of how this doesn’t work. Yes, there is minuscule small print on the poster that indicates that further calls or texts will be made and I can opt-out, but unless one has carried a magnifying glass onto the Tube or into the toilet cubicle, the text is impossible to read, and easy to overlook. Many charities using the one-off donation technique seem to be doing so to harvest mobile numbers for fundraising calls. In Data Protection terms, this is unfair and does not represent consent (breach of the 1st principle); in PECR terms, if the number is on the TPS, the charity has not obtained consent and any calls made to a TPS registered number harvested in this way will be unlawful.

An article in Civil Society published shortly after the FPS proposals were first mooted contains this key quote:

The idea is that members of the public would be able to simply and easily add their names to a “suppression list” so they would not be contacted by fundraisers. Rather than rely on charities using the existing mail and Telephone Preference Services, the FPS would allow you to put a stop to all contact with charities.

The TPS already allows you to put a stop to all contact with charities by phone, along with everyone else. Charities are not unfairly discriminated against by the TPS, any more than any other sector might be. The TPS is a blunt instrument, but it is a fair one. The fact that charities see the FPS as being a problem suggests to me that they either don’t understand the TPS (they believe the donation = consent nonsense), or they think they can ignore it. Civil Society reported at the end of October that the Institute of Fundraising (which represents, remember, organisations that make money out of fundraising, rather than charities themselves) was changing its guidance in line with the expectations of the Information Commissioner’s Office. The IoF nevertheless claims that this change (i.e. complying with PECR) “unduly” restricts the ability of charities to “maintain relationships with their supporters“.

Donation = consent isn’t the only myth that has been propagated. Civil Society’s David Ainsworth claimed a few weeks ago that all the blame lies at the door of the ICO (and that’s often a valid argument). The problem is, the story isn’t true. Ainsworth said “In 2010 David Evans, a senior data protection manager at the ICO, explicitly told charities they were allowed to call people registered on the TPS, so long as they received no complaints. Just in case there was any doubt, this was followed up with official guidance which effectively said that the ICO did not intend to apply the law to charities.” I asked Ainsworth on Twitter if he could provide evidence that this is what the ICO said. All he could provide was a note written by the Institute of Fundraising, who are hardly objective. But even that note contradicts Ainsworth’s article, stating the TPS position clearly, with only a little bit of nuance.

TPS regulations ‐ any person registered on the telephone preference service (TPS) cannot be called unless they have advised the calling party that they are happy to receive calls. In practice, a charity might judge that, given the nature of the relationship between them and the supporter, they might be able to make a marketing call to that subscriber despite TPS registration.

In truth, what Evans said is a line I have heard many times from different ICO people – if a data controller thinks it has consent, acts on that consent, and crucially, the ICO doesn’t receive any complaints, then they probably had consent. In other words, the ICO won’t act on complaints it hasn’t received. The ICO did not give charities an exception. Should any charity have bothered to investigate, they would have found that ICO has no power to do so. The problem was, as Christopher Graham told Parliament last month, there were thousands of complaints about charity direct marketing, but they were all going to the Fundraising Standards Board, a self regulatory body that regulates the Institute for Fundraising’s code. The FRSB did not pass any of the complaints on to the Information Commissioner.

**UPDATE: originally, this blog said that the Fundraising Standards Board was ‘run by‘ the Institute for Fundraising, which was poorly worded shorthand, treating the IoF as if they are the embodiment of fundraisers and charities. The FRSB is a membership body, paid for by its members (who are charities and fundraisers), and its role is to act as a self-regulator for the Code of Fundraising Practice drawn up by the IoF. I don’t believe that the FRSB is properly independent of the Institute for Fundraising not least because they ‘enforce’ a code written by the IoF, and which was legally inadequate. I’m not the only person who thinks this: post-Etherington, the FRSB is being abolished, and responsibility for the Fundraising Code is being transferred to a new regulator. The IoF’s Chief Executive welcomed the new regulator’s creation (tacitly welcoming the abolition of the FRSB), and recognised that moving the Code from the IoF to the new regulator was necessary to avoid the perception of a ‘conflict of interest‘.**

The biggest barrier to charities accepting legal reality – either by complying with the TPS, or with some workable version of the FPS if such a thing is possible – may be the fact that some in the sector don’t really believe in consent at all. Matthew Sherrington, a consultant writing in Third Sector this week, wasn’t exactly subtle: “The awkward truth, which is difficult for charities to argue publicly, is that the generous public (the UK is the most generous in Europe, as it happens) do not give off their own bat, but need to be asked” (my emphasis). The same argument was made by Ian MacQuillin, blogging on behalf of Rogare, a fundraising think tank: “Everyone knows that most people give because they are asked to do so” and later on “I suspect that the FPS would be used not just by people who really are on the receiving end of such a deluge of fundraising material that it was making their lives a misery; but more by people who want to spare themselves the difficult choice of deciding how to respond to a donation request, and the guilt and cognitive dissonance that results when they say no“. The thinking that runs through both articles, and others, is that fundraisers must be able to ask, that the potential donor / prospect / target (which is what we all are to the fundraiser) should not be allowed to opt-out of being asked. We should have to listen to the pitch, and should be forced into the awkward, embarrassing (or in MacQuillin’s word) guilt-ridden option of saying no. There is, in this world, something inappropriate, even immoral in having a choice about whether to be approached in the first place.

**UPDATE: I have had a long Twitter conversation with Matthew Sherrington. He hasn’t put a comment on the blog (which he and anyone is welcome to do) but he thinks I have misrepresented what he said about consent and marketing, and I think that I should mention this. I stand by my comments above, but I’m linking to his article again here so you can read it and make up your own mind about what he says.**

It’s possible that fundraisers and consultants genuinely don’t understand the TPS, don’t understand that it’s already supposed to be possible to opt-out of every marketing phone call, or that texts and emails are opt-in in the first place. Fundraisers see widespread abuse of PECR and Data Protection, so assume that it’s all fine and that daft proposals like the FPS represent unfair singling out of the charity sector. At this point, it is fair to criticise the Information Commissioner for their generally insipid enforcement. I think there is also a sense of entitlement among charities (which is one thing, as most charities have a clear public interest objective), but also among fundraisers (who are, in the main, just private businesses making a profit). There are no exemptions. There is no charity carve-out or defence. The European Data Protection Directive, from which everything in UK DP and PECR law is derived, makes clear that charities are included along with everyone else. It’s in article 30, if you’d like to check.

In amongst all of the anger and self-justification available in the charity press, one article in Civil Society also caught my eye: “Trust in charities is at its lowest point since 2007, with charities now less trusted than supermarkets“, according to a survey carried out by npfSynergy. Some might blame the Daily Mail and Camila Batmanghelidjh, but purely anecdotally, on every training course about direct marketing that I have run in the past five years, the main examples people come up with for poor quality, persistent, sometimes rude marketing calls are either PPI or charities. Fundraisers and charities alike need to ask themselves if they want to be in company with spivs and spammers. Rather than try to rewrite history, or the law, or continue to adopt an approach based on pestering and guilt, perhaps the big charities should look at a business model that is bringing them into disrepute. There is a real question about how they raise funds without marketing calls and other contacts to people who don’t want to receive them but the only solution to this is to get PECR and the DPA amended to remove charities from the marketing requirements, but as this would deprive the public of their existing rights and mean that the UK is in direct breach of EU law, I doubt they’ll get very far. I still think the Fundraising Preference Service is unnecessary in the light of existing provisions, but if it is implemented in some meaningful form, and finally gets the message across to the most unrepentant of charity spammers, maybe I’m wrong.

King Canute famously stood in the waves and ordered back the sea, but only to show that his powers were limited. Some charities and fundraisers are up to their necks in water, but think that they have the ability and the right to turn the tide of history. If they don’t wise up, they will drown.

 

Comments

  1. I first read this blog on Saturday, after spotting a tweet saying I wouldn’t like it. Having read it again, there’s actually a lot which makes sense, but there are a number of problems which I’ll address.

    The main one, from my point of views, is that you accuse me of propagating myths – effectively, of lying. Hopefully I can explain why I think I’m being reasonable, and why I have good evidence for what I’ve previously written.

    You’ve rather cast me in with proponents of the FPS and those who believe in fundraisers’ right to ask, neither of which I’m in favour of. So here’s where I’m largely in agreement with you.

    You obviously feel that the TPS and MPS obviate a need for the FPS. I hold no brief for the FPS and I’m probably, on balance, opposed to it. Most of the charity sector agrees with you.

    I have a lot of time for the guys who suggested it, though, so I’m not completely closing the door to it until I hear all the arguments.

    You take Ian MacQuillin to task over the need to ask. I tend to think all of this “we need to ask” stuff has a basis in truth but is a bit overblown. People have always given to charity, and they always will.

    I also think you feel that charities have got away with too much for too long, and believed they’re above the law. You obviously feel that fundraising agencies are worse. The situation’s not as cut-and-dried as all that, but there’s obviously a decent amount of truth in that assertion. I would certainly argue for reform.

    Now, let’s look at specific issues in the text.

    1. You wrote the following in your previous blog, and reference it as still true in this one.

    “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.”

    You say this because the individual can subscribe to the TPS and MPS. But of course fundraisers can contact people using other means than telephone and letter. FPS protects the person, not their phone or their address. Whether this is a good idea or not is open to debate. But you must acknowledge that a person is a different thing from a telephone.

    In addition if someone is TPS-registered but has given consent to be contacted to 100 charities and now wishes to change their mind, can they use the TPS to do it? Perhaps – I’m not an expert – but I don’t see how. Registering for the FPS would do so, however.

    2. You write:

    “There is nothing in Data Protection, the Privacy and Electronic Communications Regulations (PECR) in general or the Telephone Preference Service (TPS) provisions in particular that stops a charity from contacting a person who wants to be contacted. The FPS is non-statutory, and so cannot change it.”

    On the most technical level you’re right, but in practice it’s not likely to work that way.

    The FPS will be enforced by the fundraising regulator. Obedience to the regulator will be required of registered charities under a reserve power in the Charities Bill. It’s a reserve power, so regulation won’t be enacted unless charities disobey, but it will effectively have statutory force.

    So if the FPS says charities can’t do something, they can’t do it.

    3. You write:

    “Donation = consent isn’t the only myth that has been propagated. Civil Society’s David Ainsworth claimed a few weeks ago that all the blame lies at the door of the ICO (and that’s often a valid argument). The problem is, the story isn’t true. Ainsworth said “In 2010 David Evans, a senior data protection manager at the ICO, explicitly told charities they were allowed to call people registered on the TPS, so long as they received no complaints. Just in case there was any doubt, this was followed up with official guidance which effectively said that the ICO did not intend to apply the law to charities.” I asked Ainsworth on Twitter if he could provide evidence that this is what the ICO said. All he could provide was a note written by the Institute of Fundraising, who are hardly objective.”

    Okay, so this is the real reason I responded. You said my story wasn’t true, and I got the hump, because you called me a liar. You wanted me to respond, and I took the bait. So here goes.

    I think it’s a bit cheeky to ask for written evidence, five years later, and get all affronted when it transpires it’s been unpublished.

    I also think my sources are pretty good on this one. I was a charity reporter in 2010, and I was closely involved with this story when the discussions took place. The original coverage of this story was written by Kaye Wiggins, then my colleague at Third Sector, and an excellent journalist, who is unlikely to have got her facts wrong. I was sitting next to her as she covered this issue and discussed it at length. I read the note at the time, and we talked about its implications. I discussed it years ago with others involved in the process, and rang a couple of them before I published my blog to check my own recollection.

    The facts not in dispute are: the IoF and senior fundraisers held a conference with the ICO, and were surprised by what they saw as a lax attitude to compliance. They asked for more information, received a guidance note, and changed the rules to reflect what they felt they had heard. The rules were then available for the ICO to read.

    I can’t prove if anyone at the ICO read them at that time, or knew what the IoF was telling fundraisers to do.

    But I do know the IoF had just told the ICO it planned to change the rules, based on ICO guidance. It would have been incredible if the ICO didn’t ask to see a copy. And pretty negligent, to be honest. Whether it did or didn’t read the ICO guidance, it seems reasonable that fundraisers should consider it to be produced with ICO consent.

    Then, come the Olive Cooke affair, the ICO suddenly demanded a new meeting, and said the rules were wrong. It demanded the IoF rewrite the guidance it had caused to be written five years before.

    Obviously lots of things change in five years – personnel, circumstances, etc. But the key point of my piece is that as far as charities were concerned, the ICO moved the goalposts. The real point I was trying to make is that you shouldn’t rely on sweetheart deals like this, no matter what you think they’ve heard.

    Anyway, you can read Kaye’s pieces here:

    http://www.thirdsector.co.uk/charities-may-call-supporters-registered-telephone-preference-service/fundraising/article/993662

    and here

    http://www.thirdsector.co.uk/charities-can-call-supporters-registered-telephone-preference-service/fundraising/article/988492

    and here:

    http://www.thirdsector.co.uk/analysis-calling-people-registered-telephone-preference-service/fundraising/article/990198

    Whatever you think of the IoF and fundraising agencies, it’s clear they feel the ICO has now moved the goalposts. Back to where they should have been all along, probably, but that’s no help to charities.

    4. You write:

    “It’s possible that fundraisers and consultants genuinely don’t understand the TPS, don’t understand that it’s already supposed to be possible to opt-out of every marketing phone call, or that texts and emails are opt-in in the first place. Fundraisers see widespread abuse of PECR and Data Protection, so assume that it’s all fine and that daft proposals like the FPS represent unfair singling out of the charity sector.”

    So it sounds like you think FPS and TPS do the same thing, and people think they shouldn’t have to follow TPS or FPS. This is not what’s happening.

    Fundraisers followed rather liberal guidelines about how to obey TPS, because they understood – rightly or wrongly – that that was how the ICO interpreted the law. Now the ICO has made its feelings clear, they’re following the new guidance.

    The actual FPS issues are complex and numerous, but let’s look at two.

    One issue is that FPS applies to a person, not a number, which is difficult because it requires you to ID the person. It’s complex and difficult if you have loads of people with the same name on the database. Also, if a new method of communication emerges, that would in theory be banned as well.

    Another issue is that FPS creates two layers of checking – against the TPS database, then against a separate FPS database – and this is cost-prohibitive.

    5. You write:

    “I think there is also a sense of entitlement among charities (which is one thing, as most charities have a clear public interest objective), but also among fundraisers (who are, in the main, just private businesses making a profit).”

    This latter statement is factually wrong, in that most fundraisers work directly for charities. You mean fundraising agencies. It’s a minor point, which I wouldn’t normally bother to correct, but since the blog is about fundraisers, it’s quite important to know who they are.

    The actual statement about entitlement is probably quite correct, although poor behaviour at agencies tends to be more because most agencies are operating on pretty slim margins already. This is often because charities tend to push a bit too hard, and this is often because they are so sensitive to the public demand for low fundraising ratios.

  2. Those running mega-charities or pseudo-charities don’t care about disrepute, it is about short-term profit, riding the gravy-train. And with the government cutting and pretending charity will pick up the shortfalls, there is a protected market created which the anti-social can thrive in.

  3. I got this in reply from the NSPCC:

    I’ve found your record and can see that we did receive your request not to receive postal communications or telephone calls, and we ensured that you’re not included in these. Unfortunately we didn’t realise that you didn’t want to receive emails as well and I’m very sorry about this. I’ve adjusted your record so you won’t receive any further emails from us.

    We appreciate the concerns surrounding the recent Etherington Review and we were very happy to provide evidence to aid in the compilation of the review. We accept the proposals laid out in the review and welcome the clarification that it has brought.

    We are and always have been very happy to make any adjustments to the communications we send to our supporters, as we appreciate that this is extremely important to building and maintaining our relationship. As a charity that relies very heavily on the goodwill of the public the last thing we want to do is to cause upset or offense. We are very conscious that every supporter wants to receive different information from us, which we completely respect and actively encourage each to let us know their personal preference and offer the option to unsubscribe on all our letters and emails. Thank you very much for letting us know your personal preferences!

    Note the lack of explanation as to why they failed to establish consent *before* the emails were sent.

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