Breadcrumbs

Charity fundraising by telephone: who can you call - and when?

Third Sector, 16 November 2009

Data Protection Act 1998

Data Protection Act 1998

Kaye Wiggins examines how the recent debate was ignited and highlights the regulations, codes and enforcement bodies that fundraisers need to know about

When Karl Holweger, chief executive of telephone fundraising agency Pell & Bales, last month advocated phoning supporters who had asked not to be contacted to check whether they had changed their minds about receiving calls, the debate that broke out highlighted the extent of confusion in the sector about the rules on telephone fundraising.

The company's practice, it emerged, contravened part of the Privacy and Electronic Communications Regulations, which make it clear that organisations should not contact people who have specifically asked not to be contacted.

But it did not contravene the Institute of Fundraising's codes of practice. Holweger chaired the working party that drew up the institute's rules, which say "administrative" calls that do not ask for money are exempt.

Holweger has since apologised for having advocated the practice and said Pell & Bales would desist. And when the row developed, Colin Lloyd, chair of the Fundraising Standards Board and the Telephone Preference Service, announced that he would organise a summit to clarify the rules.

That announcement has been welcomed in the sector. Gordon Michie, development director at telephone fundraising agency Relationship Marketing, says: "So many bodies have powers over telephone fundraising that it's difficult to know where to start. Agencies are acting in the spirit of the rules, but it would be helpful to get some clarity on whether the Institute of Fundraising codes are enough."

It's a contentious area: the second-highest number of complaints made to the FRSB last year concerned telephone fundraising: 2,772, or 10.5 per cent, of the 26,349 complaints received related to it.

Elaine Lee, a director of direct marketing consultancy Reynolds Busby Lee, sits on the FRSB advisory board and the Direct Marketing Association telemarketing and contact centre council. She says: "Most charities that carry out telephone fundraising do so through agencies - any charity that does so is legally responsible for making sure that the agency does not break the rules.

"It is the charity, rather than the agency, that will be penalised if things go wrong."

In practice, says Lee, charities do not always keep a close enough eye on agents and are often unaware of what is within the rules and what is not.

STATUTORY REQUIREMENTS

Privacy and Electronic Communications Regulations

What are they?

The UK regulations, made in 2003, put into effect the EU's E-Privacy Directive. The rules cover electronic marketing, which includes telephone fundraising. However, they do not cover so-called "silent calls", which are covered by Ofcom's regulations (see below).

Who polices them?

The Information Commissioner's Office.

What do they say?

- Telesales calls, which include those made by fundraisers, "should not be made to anyone who has told the caller directly that they do not wish to receive calls".

- Once a person has asked not to be contacted, "the only way you can legally call that number again is if the subscriber tells you directly that they have changed their mind and is now happy to hear from you again".

- Charities and telephone fundraising agencies must not delete numbers from their database when people ask not to be contacted; instead, they must "suppress" them so they have a record of who has opted out. This is intended to prevent them from accidentally calling people who have expressed a wish not to be called.

- Fundraisers must not use automated dialling systems, which dial a series of numbers automatically and play a recorded message, unless the recipient has consented to this.

Ofcom regulations

What are they?

Ofcom is the communications regulator, set up under the Communications Act 2003. It regulates TV and radio, but it also covers fixed-line and mobile telecommunications. Its 2006 Persistent Misuse Statement sets out its rules on telemarketing, which apply to telephone fundraising.

Who polices them?

Ofcom has statutory powers to enforce its regulations. It can impose fines of up to £50,000.

What do they say?

- Ofcom's rules cover "silent calls", which can happen when automated diallers are used to call a number of people but there are not enough staff to deal with the calls, so a recipient might hear nothing on the end of the line.

- Such calls should not exceed 3 per cent of all calls made on an individual campaign over a 24-hour period.

- There should be a 72-hour period before a number that has received a silent call can be called again without the guaranteed presence of an agent.

- Callers should give their telephone numbers so that consumers can make return calls.

Charities Act 2006

What is it?

The act covers a wide range of issues relating to charities and contains some rules on telephone fundraising.

Who polices it?

Depending on the nature of the breach of the act, the law can be enforced by trading standards bodies, the police or the Charity Commission.

What does it say?

- Telephone fundraising agencies are regarded as professional fundraisers and must have a written agreement with the charities they raise funds for.

- If a professional fundraiser makes a request for money orally but not by speaking directly to the potential donor to whom it is addressed - in other words, by telephone - the fundraiser must give a written statement to any person that makes a payment of £50 or more in response to that solicitation within seven days of the payment being made.

- This written statement must give donors full details of their right to cancel the agreement and their right to a refund. Fundraisers that fail to do so are liable to a fine of up to £5,000.

More information Go to www.charity-commission.gov.uk and look for the link in the 'How Do I' box.

Telephone Preference Service

What is it?

The official central opt-out register on which individuals record a preference not to receive unsolicited sales or marketing calls. It is a legal requirement that charities do not make calls to numbers registered on the TPS unless they have specific consent to do so.

The TPS regulations exclude "administrative calls". They also say that fundraisers may call existing supporters who have subsequently registered on the TPS, provided that the relationship to the supporter is "sufficiently warm".

Who polices it?

The Information Commissioner's Office.

What do you have to do?

- Check telephone numbers against the TPS when intending to call cold donors, and do not make direct marketing calls to numbers registered on the service unless you have been notified that you may do so.

- It is up to the organisation making the calls to decide what constitutes a "sufficiently warm" relationship with a donor.

Data Protection Act

What is it?

The act, passed in 1998, sets out the principles that must be adhered to by organisations processing people's personal information.

Who polices it?

The Information Commissioner's Office.

What does it say?

- When a charity sends its supporters' contact details to a telephone fundraising agency, this must be done securely.

- This means setting up a secure link that cannot be hacked into, rather than posting a CD containing the data, or sending it via email.

More information www.ico.gov.uk.

PROFESSIONAL CODES

Institute of Fundraising code on telephone fundraising

What is it?

The institute has codes of fundraising practice and a code of conduct. They highlight existing legislation and outline best practice for fundraisers.

Who polices it?

The Fundraising Standards Board.

What does it say?

- It excludes "calls undertaken in the course of the administration of support that has already been achieved".

- Organisations should avoid calling people after 9pm unless they have "expressly invited" calls after that time.

- They should send a pre-call letter to all prospective recipients of cold calls, which enables them to ask for the call not to take place.

- Fundraisers should explain that the purpose is to request financial support, and give the name and address of a person to whom complaints can be directed.

- Fundraisers should ask recipients whether they are happy to receive the call and whether they consent to receiving such calls in future.

Fundraising Standards Board

What is it?

The FRSB was set up in 2006. It runs a self-regulatory scheme for fundraising bodies in the UK and has 1,130 members. It aims to "increase public confidence in charitable giving" by encouraging high standards.

Who polices it?

The FRSB expects its members to follow the Institute of Fundraising's codes and can expel them if they carry out serious breaches of the codes, regardless of whether they are a member of the institute. The FRSB's board has also agreed recently that it will address concerns about non-members. It does not have statutory powers.

What do you have to do?

- Abide by the institute's code (see above) as well as the statutory requirements for telephone fundraising.

Direct Marketing Association

What is it?

The trade association for marketing and communications. It was formed in 1992 and aims to protect the direct marketing industry from legislative threats. It has a set of best practice guidelines that apply to its members.

Who polices it?

The Direct Marketing Commission, the independent self-regulatory body for marketing and communications. If it decides an organisation has broken the DMA's rules, it can recommend that the DMA expels that organisation.

What does its code say?

- Members must not engage in the practice known as "sugging", or "suggestive mugging", which it defines as misrepresenting themselves as carrying out research when the real purpose is to ask for money.

- Members must avoid high-pressure tactics that could be construed as harassment.

 

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