Information Commissioner's approach 'has confused charities about direct marketing'

Sir Stuart Etherington, chief executive of the NCVO, says the ICO has changed its approach, having previously been little interested in pursuing charities for breaches of direct marketing rules

Telephone fundraising
Telephone fundraising

Charities have been confused about the lawfulness of their direct marketing activities because the Information Commissioner’s Office previously took a less robust approach to regulating the sector, according to Sir Stuart Etherington, chief executive of the National Council for Voluntary Organisations.

Speaking to Third Sector after his speech at the Strategic Fundraising for Leaders in Higher Education conference in London on Wednesday, Etherington said that before the negative media coverage about the sector’s fundraising practices last summer, the regulator had given the impression that it was not particularly interested in pursuing charities for breaching direct marketing rules.

"I don’t know what changed between 2010, 2013 and 2015, but the ICO has certainly changed its approach," said Etherington.

The ICO had previously denied changing its stance towards the sector when Third Sector questioned it about guidance issued by the regulator in 2010, which said that fundraisers could make calls to supporters on the Telephone Preference Service if they believed the supporter would be unlikely to object to such calls.

It showed a much tougher side last August when two of its staff gave a presentation telling fundraisers that charities that called donors who were registered with the TPS could face fines of up to £500,000.

Etherington said yesterday that the ICO and charities had engaged with one another infrequently in the past but would play a much more significant role in each other’s worlds from now on.

He said the retirement later this year of Christopher Graham, the Information Commissioner, would probably be a good time for the regulator to start communicating more frequently with the sector.

In his review of the self-regulation of fundraising last September, Etherington recommended that the ICO should produce specific guidance outlining its regulatory approach towards charities and fundraising, which should state what constituted "informed consent" from donors and how this related to specific fundraising practices.

The ICO initially appeared willing to comply with this, issuing a statement within days of the review saying it would produce further guidance on the issues of informed consent in relation to fundraising practices and the timescale of valid consent.

But in written evidence published last week on the website of the House of Commons Public Administration and Constitutional Affairs Committee, which is due to publish the findings of its review of charity fundraising next Monday, Graham said it should not be necessary for the regulator to publish bespoke direct marketing guidance for the charity sector and charities needed to understand that their activities in this area were bound by the same laws and rules as those of other organisations.

He said the ICO instead intended to update its cross-sector direct marketing guidance from 2013, ensuring that this addressed the practices that had been criticised in recent months.

An ICO spokeswoman was unable to confirm when the updated guidance would be published, but she said it would include examples and case studies for charities on how it could be put into practice.

She confirmed that separate guidance for charities would not be published.

Asked if he was satisfied with this, Etherington said he did not mind that the ICO was not producing separate guidance for charities. He said it was more important for the regulator to find an effective way of communicating with the sector more generally and that the ICO’s willingness to engage with the new "opt-in working group" announced by the NCVO this week was a good indication that it would be willing to do this in future.

Asked to comment on Etherington's claim that the ICO had changed its approach, an ICO spokeswoman said: "We’re clear that every sector has to follow the law, and if that law has been broken then we will take action."

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