Fundraising Regulator confirms 'legitimate interest' exception for preference service

The watchdog clarifies its announcement on the Fundraising Preference Service after some in the sector express confusion

Fundraising: legitimate interest communications acceptable
Fundraising: legitimate interest communications acceptable

- This story was corrected on 6 December; please see final paragraph

The Fundraising Regulator has clarified that charities blocked from contacting people by the Fundraising Preference Service will still be able to get in touch with their supporters using "legitimate interests".

In a clarification note published on its website on Friday, the regulator confirmed that the service would apply to all charity communications, but would not prevent charities from contacting supporters using legitimate interests "on other communications such as standing orders/direct debits, legacies and volunteering".

The note came after the regulator’s announcement on Thursday that the FPS would apply to all charity communications provoked criticism and confusion in the sector, with some participants irritated that the concept of the service applying to all charity communication had never featured in the regulator’s multiple consultations.

"To make things as straightforward as possible, FPS will cover all charities and all communications," reads the note, which was written by the regulator’s policy manager, Stephen Service.

"Committed donors are unlikely to want to opt out from the charities they support, particularly where charities have sought their consent for contact and make sure they renew it periodically.

"But if in rare cases that happens, FPS would not stand in the way of charities getting in touch with their supporters using legitimate interests on other communications such as standing orders/direct debits, legacies and volunteering."

The note concludes that if any problems were to arise, the regulator would work with charities and donors to resolve them.

The regulator appears to be referring to the "legitimate interest" criterion in the Data Protection Act, which enables organisations to send direct marketing material under certain circumstances.

Asked for a full list of situations in which charities blocked by the FPS could still contact those people, a spokesman for the regulator said it would not be providing further guidance at this time.

The National Council for Voluntary Organisations working group on opt-in recommended in September that charities should minimise their reliance on legitimate interest and not approach people using the criterion more than once a year.

The regulator’s spokesman said the regulator supported the group’s overall approach but did not have a view at this point as to the frequency with which legitimate interest could be used.

The regulator’s update comes after Ian MacQuillin, director of the fundraising think tank Rogare, criticised the regulator in a blog published on the Third Sector website on Friday for not consulting with the sector on making the service applicable to all charity communications.

Others expressed frustration on Twitter about the lack of clarity on whether the service would apply only to communications considered as direct marketing under the Data Protection Act or to all communications.

Jenni Anderson, director of income generation and marketing at Haven House Children's Hospice, tweeted: "What if beneficiaries use FPS/CPS, ALL comms will include service information?" to which Daniel Fluskey, head of policy at the Institute of Fundraising, replied: "Good question. I'd hope not. Should be 'direct marketing'. Not service or admin comms."

The regulator’s board took its final decision on how the FPS would work at a meeting on 16 November.

The other aspect of the decision that came as a surprise was that the service would not offer a "reset button" for people to completely reset their communications with charities, instead giving people the chance to name specific charities from which they no longer wished to hear.

Sign-ups will have the statutory force of a Data Protection Act Section 11 notice to cease direct marketing.

- The story originally said Daniel Fluskey had observer status on the Fundraising Regulator's board. He has observer status on its standards committee. 

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