Who: British Red Cross; UK Information Commissioner’s Office (“ICO”), National Council for Voluntary Organisations, Fundraising Preference Service Working Group
Where: UK
When: 26 February 2016
Law stated at: 7 April 2016
What happened:
The UK’s new proposed Fundraising Preference Service regime continues to take shape – however in the meantime the ICO has issued a press release to give the British Red Cross a pat on the back for adopting best-practice undertakings for its telemarketing activities, prior to any new rules coming into force.
ICO investigates charities
The story begins back in 2015 where the ICO launched an investigation following a report in the Daily Mail that certain charities were competing for donations in breach of marketing rules, including failing to screen against the Telephone Preference Service do-not-call list. The regulator contacted a number of charities asking for clarification, including the British Red Cross (“BRC”).
The BRC liaised with the ICO on a number of queries the regulator had about its practices.
The result of this engagement and the evidence produced was that the regulator found that the charity complied with the law, but offered the BRC some additional advice around good practice that could be implemented.
Red Cross, Gold Star
Following this input from the ICO, the BRC elected not only to implement but to exceed the ICO’s suggestions, giving two specific undertakings:
No calls without consent
The BRC undertook to implement an “opt-in” consent model for live telemarketing calls within 12 months. This goes above and beyond the requirements of PECR.
Regulation 21 (1) requires telemarketers to neither use nor instigate the use of public electronic communications services for the purpose of making unsolicited calls for direct marketing purposes where:
- the called line is that of a subscriber who has previously notified the caller that such calls should not for the time being be made on that line; or
- the number they are proposing to call is on the national “do not call” list operated by the Telephone Preference Service (“TPS”), which the marketer should have checked against before making the call.
Regulation 21 (3) does, however, allow calls to be made to a number that is on the TPS list where the call recipient has, since registering that number on the list, notified the caller that they do not for the time being object to such calls being made by that caller to that line.
Despite this limited saving, the BRC’s undertaking that it will only call people who have given free, specific and informed consent to their personal data being used in this way is a significantly higher threshold.
Putting a use-by-date on consent
The BRC also elected to put a time limit on how long it will rely on such consent for telemarketing. ICO guidance on the conditions for processing of personal data suggests that in most cases consent will last for as long as the processing to which it relates continues. However in this instance the BRC has undertaken that after 24 months from obtaining consent, it will obtain fresh, specific, informed consent from the individual.
Progress towards the FPS continues
In the meantime, progress towards a brand-new “Fundraising Preference Service” (“FPS”) specifically aimed at charity fundraising activities continues. The National Council of Voluntary Organisations set up the “Fundraising Preference Service Working Group” to develop recommendations on how to implement this and the Group released a discussion paper on March 1 setting out the group’s thoughts and inviting comments.
Current proposals are that the FPS will be a combined do-not-call; do-not-email and do-not-mail list.
Other propositions are that FPS registration should only apply to fundraising communications (i.e. communications soliciting donations) but should not impact other forms of communication where the purpose is not a solicitation. However the working group sought views on whether this would be a distinction which would be workable in practice, and, for example, whether communications regarding charity lotteries and raffles should qualify as a fundraising communication.
Consideration is also being given to the issue of unaddressed mail, and whether regulation of other channels could risk leading to a spike in this.
Practical issues are also being considered – for example how the FPS platform will operate and how users can designate specific charities that they are happy to hear from.
The consultation on the discussion paper closed on 31 March, so we are anticipating further updates on the service from the working group in the near future.
Why this matters:
While there is no legal requirement for all charities to “gold-plate” their approach to PECR compliance in the same way as the BRC have done, being able to demonstrate that you are using best practice methods to comply with telemarketing and data protection laws does of course carry a potentially valuable PR benefit. However, this is not something that should be undertaken lightly as, having provided this undertaking to the ICO, the BRC are now obliged to continually go above and beyond the legal position or risk action from the regulator.
Regardless of whether charities elect to follow the BRC’s model, charities will soon be faced with an additional burden of compliance when the FPS is introduced. At this point they will not only need to screen their direct mail against the MPS and their calls against the TPS; but they will potentially also need to screen (certain) communications by mail, phone or email against the FPS. How this will impact on the third sector remains to be seen.
