Non-compliant fundraising practice still common, says ICO

The Information Commissioner’s Office believes there is still an on-going "divergence" between common fundraising practice and what it sees as compliant practice, according to emails obtained by Third Sector.

The regulator says in an email obtained under the Freedom of Information Act that the problem goes beyond charities calling people registered with the Telephone Preference Service.

In an email dated 12 May, Richard Marbrow, a senior policy officer at the ICO, tells the Institute of Fundraising there is an ongoing issue in the sector, which he describes as "a divergence between a number of standard fundraising practices and what the ICO would regard as compliant practice."

Marbrow, who is the lead person for charities within the ICO, says this is a wider issue than the "warm donors guidance that was issued some time ago".

He appears to be referring to the ICO’s announcement in August 2015 that charities that called donors registered with the TPS would be in breach of the Privacy and Electronic Communications Regulations unless the donor had specifically consented to such calls.

Marbrow also says in another email to the IoF, dated 25 May, that charities are still falling significantly short in meeting the consent requirements of the Data Protection Act and the Privacy and Electronic Communication Regulation.

He says he suspects the gap is greater between "what constitutes consent now and the consent that some of the sector relies on" than between the current consent requirements of the DPA and PECR and the requirements of the General Data Protection Regulation in 2018 which will come into effect in 2018.

The comments were made almost a year after the ICO launched a major investigation – which is yet to conclude - into whether four charities broke the law by calling TPS-registered supporters.

Asked to specify the fundraising practices that were causing concern, a spokesman for the ICO said: "The ICO has been clear that it has concerns about how some aspects of fundraising in the charity sector comply with the law.

"We’ve given evidence to parliament about this, and have ongoing investigations into several charities. We’ve spoken to the charity sector about our concerns, and have highlighted specific areas for the sector to address in our updated direct marketing guidance."

In the second email, Marbrow also says that the wider social policy implications of the law are "not something the ICO has responsibility for".

He was responding to an earlier email from the IoF in which a representative from the body asked the regulator to bear in mind the unintended consequences which could occur when the ICO issues new guidance around direct marketing consent later this year.

The IoF representative said that the ICO’s views on consent relating to text donations "could have a big impact for the sector and wider ramifications for society" if, for example, the regulator stopped allowing organisations such as the Disasters Emergency Committee to contact supporters in the aftermath of a disaster.

Commenting on the exchange, Daniel Fluskey, head of policy and research at the IoF, told Third Sector"We know that the ICO is continuing to engage with the charity sector and we will continue to work with the ICO and the fundraising community to make sure that charities have the clear guidance, support and advice they need."

The ICO’s new guidance on the consent requirements of the GDPR is due out by January 2017 and its investigations are expected to be completed by September

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