Donor consent in light of the Fundraising Preference Service (FPS)

What does the Fundraising Preference Service actually mean for NI charities and how does it fit with current and planned data protection legislation?

Fundraising Preference Service (FPS)

The development of a FPS was one of the Cross-Party Review’s 5 key recommendations.  The aim was to meet the public’s expressed need to have more control over their contact with charities.  It is fair to say that recent research demonstrates that public desire for this has not abated.

After an initial report from the FPS Working Group in July 2016, followed by a consultation exercise in August/September 2016, the final form of the FPS was unveiled on 1st December 2016.   Response to the final FPS from the voluntary sector was mixed

The Fundraising Regulator’s view is that –

“the chosen approach is the most effective way to put in place a straightforward and user-friendly system to protect the interests of donors where they wish to opt out, whilst recognising the real concerns that charities have about the impact of a FPS on their fundraising.”

The final proposal will now come into operation in spring or early summer 2017 and will be reviewed after its first year of operation.

What is the practical impact of the FPS?

  • In simple terms, the Fundraising Preference Service (FPS) will allow the public to state that they do not wish to be contacted in any way by particular charities
  • Guidance for the public will be provided explaining how best to manage contact with charities and what the FPS will and will not do.
  • The process will be IT based but with a telephone service available to support those who might be vulnerable, or without IT and signposting to the Telephone and Mail Preference Services will be available
  • Most importantly, opt out from specified charities will have the statutory force of a Data Protection Act Section 11 notice to cease direct marketing.
  • Once members of the public have signed up to the FPS, there will be no automatic second chance for charities to contact them to ensure that this was indeed what they intended to achieve.
  • The Fundraising Regulator will ensure charities are notified of suppressions (those people opting out) and that they comply, through a largely automated process.

Clarification Statement re FPS by Fundraising Regulator

Concern that donors' opting out of all communications could have unintended effects for both donors and charities led to a clarification from the Fundraising Regulator.   The clarification stated that –

“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 continuing to getting in touch with their supporters on other communications such as standing orders/direct debits, legacies and volunteering using legitimate interests. If there are any problems, we will work with charities and donors to resolve them.”

Cost of the FPS

A major stumbling block to acceptance of the original FPS proposal was its expected additional costs.  It is now expected that any cost related to the FPS will be covered by the levy already paid to the Fundraising Regulator by approximately 2100 already identified charities.  Additional screening costs will also no longer be required as the FPS will use an automated system to notify charities of all those who have signed up. 

With regard to cost the Fundraising Regulator has stated that –

“Even if the levy had to be increased to cover costs, charities would not be faced with additional invoicing and fees to access suppression lists. The Board will keep charges under review, including whether some charge would be made to fundraising charities outside the levy. “

Where does the FPS fit with the Data Protection Act 1998, PECR (Privacy and Electronic Communications Regulations) and the forthcoming GDPR (General Data Protection Regulation)

The FPS is part of a system of voluntary fundraising regulation, whilst the Data Protection Act 1998, PECR and the forthcoming GDPR relate to statutory obligations.  This means that when considering the FPS it is vital not to view it in isolation –

 “The fundamental point… is that, UK-wide, if a donor expresses by whatever means a wish to opt out of contact with a specific charity or charities, those charities must comply with that wish or breach the statutory requirements (Data Protection Act, PECR and the forthcoming GDPR).” 

Stephen Dunmore, Chief Executive, Fundraising Regulator

NICVA has been working closely with the ICO (Information Commissioners Office) for the past 12 months to deliver a series of awareness raising and practical masterclasses on a broad range of data protection issues. These Data Friday sessions informed organisations of the responsibilities of the sectors’ increasing use of, and reliance on, data and digital services. Monthly sessions covered a broad range of topics including Direct Marketing, Information Rights, FOI, Open Data, Big Data, Cyber Security, Data Analytics, Data Anonymisation and Data Protection (including updates on the upcoming EU reform).  Due to demand NICVA and the ICO have scheduled data protection events throughout 2017.

An NCVO report also tackled the specific issue of how charities should communicate with their donors and potential donors for fundraising purposes.  'Charities' relationships with donors: a vision for a better future'.  The recommendations are based on the concept of ‘freely given, specific, informed and unambiguous consent’. The key guiding principle is that charities should have such quality of an individual’s consent for all channels of communication and for every purpose of data processing.

In December 2016 several charities were fined by the ICO for breaching the Data Protection Act.  This led to the Fundraising Regulator and CCEW issuing a Joint Alert regarding compliance with data protection law.  In Northern Ireland CCNI guidance “Data Protection - Key Requirements for Charity Trustees” was also issued in December 2016. 

Current status of the FPS across the UK

In Scotland, England and Wales members of the public can sign up to the Fundraising Preference Service with regard to charities operating in England and/or Wales and also UK-wide charities operating in Scotland which are registered with the CCEW (Charity Commission for England and Wales). 

However, Scotland has clearly rejected the FPS for charities that operate solely in Scotland and are subject to the Scottish system of voluntary fundraising regulation.

Currently, only UK-wide charities operating in Northern Ireland are subject to the FPS where they are also regulated by the Fundraising Regulator.  

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