The Information Commissioner’s Office is negotiating separate agreements with charities rather than issuing general guidance about donor consent to receiving fundraising phone calls.
Two senior fundraisers and one sector academic have told Third Sector they believe about 14 charities have been asked to sign up to agreements similar to that made by the British Red Cross last week, which committed the charity to call only potential donors who had specifically opted in to receiving calls within the previous two years.
The ICO is responsible for interpreting the Privacy & Electronic Communications Regulations, which say that "exactly how long an organisation can continue to rely on consent will depend on the circumstances and the person’s expectations". The consent period for each charity that has signed an agreement varies between 12 months and 24 months, Third Sector understands.
A spokesman for the ICO said: "We are happy to help organisations that want guidance on the law, and we have worked with several charities in this way. We’ve always been clear that how long consent remains valid will depend on the context."
The ICO launched an investigation into the Red Cross, Macmillan Cancer Support, the NSPCC and Oxfam last July after allegations were made in the Daily Mail newspaper that a fundraising agency working on their behalf had exploited loopholes in the Telephone Preference Service.
The ICO’s approach has been criticised by the academic Stephen Lee, professor of voluntary sector management at the Cass Business School, who said it was inappropriate for the ICO to draw up agreements with individual charities while refusing to provide clarity to the rest of the sector on the consent requirements for phone fundraising.
"This is preferential treatment," said Lee, a former director of the Institute of Fundraising.
"It’s disgraceful. In response to having investigated this organisation, it has now issued a statement that gives the Red Cross complete clarity as to how it can act but does nothing to help all the other organisations, not least the ones that weren’t under investigation. What sort of a way is that for a public regulator to operate?"
He said the ICO should have instead issued clear guidance to all charities about which circumstances or expectations would affect the length of a consent period for telephone fundraising.
Another source, who asked not to be named, questioned the way in which the ICO had made agreements with charities with different requirements for the time period for which consent would be valid, saying the terms varied according to individual charities’ ability to negotiate a good deal.
"The confusing factor is that it will be one set of rules for commercial organisations, a more stringent set of rules for charities generally and a more stringent set of rules still for charities that sign the voluntary undertaking with the ICO," he said. "You could argue that charity trustees would be failing their beneficiaries by signing up to any such undertaking.
"You could also interpret the situation as charities being on the back foot and being bullied by the ICO."
The third source, who also asked not to be named, also questioned the arrangement.
A spokeswoman for the Institute of Fundraising said: "The charity sector as a whole needs consistent guidance on best practice in data protection. We have held discussions with the ICO in relation to this and encourage it to publish its updated guidance for the sector as soon as possible so that all charities can be clear about the requirements expected of them."
In written evidence to the House of Commons Public Administration and Constitutional Affairs Committee in January, the ICO said it did not believe it was necessary for the regulator to publish bespoke direct marketing guidance for the charity sector and charities needed to understand that their were bound by the same laws and rules as other organisations.
The ICO spokesman declined to confirm whether the other charities under investigation had also been asked to sign up to agreements by the regulator or give any further details on what the deals consisted of.
A spokeswoman for Macmillan said it had been approached by the regulator and had written back to ask for clarification so that it could fully understand the implications of an agreement on the charity and its beneficiaries.
A spokesman for the NSPCC said that the charity had had contact from the ICO and was in talks with it.
A spokesman for Oxfam said that the charity was in talks with the ICO about an investigation by the Fundraising Standards Board into its use of the agency Listen, but was not discussing an undertaking with the ICO.
Zoe Abrams, executive director of communications and engagement at the British Red Cross, said during a presentation at the Bond conference on Tuesday that signing the undertaking had been contentious in the sector. "It was a difficult decision for us to make, but we thought it was the right thing to do," she said.