Charities that ignore preference service would be considered in breach of the law

The Information Commissioner's Office would still take action despite the non-statutory nature of the service, says its senior policy officer

Telephone fundraising
Telephone fundraising

The Information Commissioner’s Office would view charities that ignore the Fundraising Preference Service as in breach of the law despite the non-statutory nature of the service, the ICO’s senior policy officer, Richard Marbrow, has said.

Speaking at a conference in London this week on protecting and managing data in the voluntary sector, Marbrow, who works in the government and society team at the ICO, said that, despite being a non-statutory service, the FPS would have legal force behind it because the ICO would view people's registrations to the service as a withdrawal of their consent to receive marketing communications.

The regulator could therefore pursue a charity that ignored the FPS for breaching the consent requirements of the Data Protection Act, he said.

Marbrow said he was aware that some sector professionals had suggested charities would be able to ignore the service because it was non-statutory.

The comments appear to echo the stance taken by the ICO in its response earlier this year to the FPS working group’s consultation, in which it says: "We would consider that if the FPS provides a further means to opt out of communications, it would reinforce existing statutory rights under the Privacy and Electronic Communications Regulations and the DPA that are regulated by the ICO."

In this document, dated 30 March, the ICO also told the working group that it would have concerns if the FPS allowed for a different interpretation of direct marketing than that laid out in guidance from the ICO.

The ICO’s guidance states that direct marketing entails not only the sale of products and services, but also the promotion of an organisation’s aims and ideals, something that the voluntary sector academic Stephen Lee, an FPS working group member, criticised this week, saying it went beyond the requirements of the law

In its response, the ICO also urged the Fundraising Regulator to have the FPS apply to text messages and automated calls as well as standard telephone calls so that it aligns with the PECR.

Referring to the working group’s proposal to give people who registered with the FPS the option of listing organisations from which they wished to continue receiving communications, the ICO warned that charities would still need to have received consent directly from that individual in order to market to them.

"We would not welcome a system that passed the details of individuals listing a charity to those charities," the ICO said.

"It would be more appropriate if these individuals were simply not marked as requiring suppression when a charity screened a list against the FPS database.

"Charities would therefore not be able to see a difference between someone not registered on the FPS at all and someone who was registered but was prepared to allow a pre-existing consent to stand."

The ICO also warned that any encouragement it gave to specific individuals to sign up to the FPS would in itself be considered direct marketing.

The Fundraising Regulator’s board met on Wednesday to decide which of the working group’s recommendations it wished to take forward.

A spokesman for the regulator declined to say what was agreed, saying: "The Fundraising Regulator will be publishing the outcome of discussions on the FPS in the next few weeks, in the form of a discussion paper seeking views of the sector. We won’t be trailing details in advance of that publication."

Marbrow’s comments have come just before Elizabeth Denham begins life as the new Information Commissioner on Monday.

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