Developed from a recommendation in the Etherington Report of September 2015, the Fundraising Preference Service (“FPS”) was intended to ensure that members of the public would have more control over the contact they received from charities. Launched on 6th July 2017 by the Fundraising Regulator, 6,305 “suppression requests” have been received in its first month of operation.
To the dismay of some, the FPS does not work in the same way as the Telephone Preference Service (“TPS”), Mail Preference Service (‘MPS’) or the Royal Mail opt-out from unaddressed mail. However, in conjunction with these pre-existing weapons may well successfully add to the arsenal that the public can use in their war against unwanted communications or “junk”.
In simple terms the FPS works by allowing members of the public to list charities from whom they do not wish to receive direct marketing. Once notified of one of these “suppression requests” the charity must cease contacting the applicant by addressed letter, email, text message or by phone within 28 days, with continued contact risking enforcement action from the Information Commissioners Office, Fundraising Regulator or Charity Commission amongst others.
The legal framework for direct marketing is primarily covered by the Data Protection Act 1998 (“DPA”) and supplemented in respect of unsolicited electronic methods of direct marketing by the Privacy and Electronic Communication (EC Directive) Regulations 2003 (“PECR”). Direct marketing is defined in both as “the communication (by whatever means) of any advertising or marketing material which is directed to particular individuals”. Advertising and marketing includes promoting an organisation’s aims and ideals, capturing charities and other third sector organisations (see also Scottish National Party v Information Commissioner EA/2005/0021/15th May 2006).
As “direct marketing” is necessarily directed at particular persons, sending unaddressed mail will generally not be caught by the DPA definition, provided it is sent in a “blanket” way in a geographic area. This method is therefore an exception to the FPS. The more common electronic communication methods including calls, texts, fax and emails are all by definition addressed to someone and will be caught.
Contact by charities which is not advertising or marketing, for example, communications relating to an existing gift or order or for other genuinely administrative purposes also falls outside the definition of Direct Marketing (but is still subject to other parts of the DPA or PECR concerning use of personal information), but if the communication contains any element of advertising or marketing it will be considered direct marketing even if the main purpose is administrative.
Generally, charities must ensure that personal data is obtained only for one or more specified and lawful purposes; is accurate; and if necessary, kept up to date. Charities processing data most commonly rely on having obtained consent, to avoid committing a DPA offence.
“Consent” is defined in European directive 95/46/EC and mirrored in PECR as “any freely given specific and informed indication of his wishes by which the data subject signifies his agreement to personal data relating to him being processed”. The outcome is that consent is to be freely given, specific, informed and by indication (implying a positive action) with additional requirements for PECR. Consent requirements vary in relation to the type of communication used.
When the FPS was at the consultation stage there were concerns raised that it did not add anything not already covered by the TPS or for post, the MPS, but we can now see that the functions of TPS and FPS, at least in relation to live calls, are different.
Registration with TPS implies that the recipient has signified a general objection to being contacted and should not be contacted unless prior specific consent has been obtained. Where a charity does have consent to make contact, subsequent registration with TPS will not void that consent. This is where the FPS clearly does add value by removing consent for the identified charities.
Registration with FPS is a “reset button” if you like. Inclusion on FPS acts to invalidate any prior consent obtained.
In addition to the framework of PECR and DPA, there are additional legal requirements for fundraising by charities which can be found in the Charities Acts. Charity Commission guidance CC20 sets out these and the Commission’s expectations of charity trustees when fundraising.
Enforcement for breach of FPS rules can come under the remit of several bodies. The Fundraising Regulator itself has the power to name and shame charities in breach, insist on compulsory training, make cease & desist requests, insist on approving future plans, or pass information to the Charity Commission for the Commission to take action using its statutory powers. They can also refer to the Information Commissioner for enforcement which can include an enforcement notice, criminal liability for non-compliance, and fines up to £500,000.
With public and media attitudes towards charity fundraising at an all-time low, it will be fascinating to see whether they feel the FPS does bring about what they consider to be much-needed improvements in charity behaviour or whether it becomes yet another thing for the public and media to complain about.
This article was originally published on NLJ.
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