Daradjeet Jagpal outlines exactly where the law falls in relation to fundraising
The means by which charitable organisations engage in fundraising has been covered extensively in the media recently, particularly with reports of bad practice emanating from south of the Border. This has prompted the National Council for Voluntary Organisations (NCVO) to review fundraising practices in England and Wales to identify areas for improvement. In Scotland, the Scottish Council for Voluntary Organisation has begun a similar informal review at the instigation of the Scottish Government.
While the mainstream press loves to trot out tales of alleged misdeeds and harassment, the overall impact on charities on both sides of the Border can be extremely damaging. That’s why, regardless of the outcome of the reviews, ensuring that your own practice is the best it can be in terms of the law is vital.
So what does the law say?
Telephone calls must be screened against the Telephone Preference Service (TPS), which provides a general opt-out from marketing calls. If a person is TPS registered, they must not be contacted unless they have previously agreed to receiving calls from the fundraising organisation. Fundraising organisations must not also call recipients who have previously indicated their objection, irrespective of whether they are TPS registered. A stricter regime exists for automated calling systems, as only people who have specifically given consent may be contacted by such means.
Non-compliance could trigger a complaint to the Information Commissioner’s Office, who can impose a fine of up to £500,000, depending on the damage or distress suffered
Daradjeet Jagpal
With regard to postal mail, the sender of the fundraising communication should not send such communications to recipients who have opted out of receiving them. As a best practice measure, the sender should also screen its contact lists against the Mail Preference Service and should not contact registered persons.
The requirements with regard to fundraising texts and emails are stricter – only people who have specifically consented to receiving e-mails and texts can be contacted.
What are the risks?
The risks of non-compliance should not be underestimated. Non-compliance could trigger a complaint to the Information Commissioner’s Office, who can impose a fine of up to £500,000, depending on the damage or distress suffered.
Protecting your organisation from distress court claims is equally important. As of March this year, it is possible to sue for distress suffered as a consequence of a data protection breach. Recipients of unsolicited communications often complain of distress suffered, which can range from the emotional upset when communications are addressed to deceased relatives or vulnerable people receiving a disproportionate number of calls or emails in one day.
Top tips
Use data protection statements on application forms, promotional materials and your website to obtain consent to sending fundraising communications by your chosen channels early on in the engagement process.
Upon receiving “do not contact” requests, do not delete details, but suppress them. This reduces the risk of contacting persons who have already objected. Opting out should also be easy and accessible. By doing this, your organisation will be left with a contact database of those who are genuinely interested in your work.
When fundraising by telephone, tell the recipient who you are, why you have called and ask if they consent to being contacted again. Respect objections.
When sending fundraising texts and e-mails, make opting out as easy as possible by allowing direct reply opt-out or provide clear and operational “unsubscribe” links in e-mails or texts.
Daradjeet Jagpal is an associate at law firm Harper Macleod. He specialises in advising charities and other organisations on regulatory, governance and compliance issues.
