We are responding to the invitation to submit comments on the final recommendations produced by the FPS Working Group (“the Report”). Thank you for providing us with the opportunity to provide further feedback.
As a general comment, we found the recommendations to be extremely well thought through and we welcomed the detailed reasoning that was set out in relation to each aspect of the recommendations. The complexity of the FPS and the issues that will undoubtedly attend its operation, in our view, mean that detailed reasoning and consideration of this type is appropriate and necessary.
Although we have some concerns (summarised below) about the operational mechanics proposed by the Working Group, it is clear that the Group has given detailed consideration to the various elements involved and has resolved many of the problems that were initially foreseen with the FPS.
Rational for FPS
Before commenting more specifically on the proposed mechanics of the FPS, we would like briefly to revisit the rationale for this service. In our submission to the original FPS consultation, we raised questions about the rationale for and the proportionality of establishing a Fundraising Preference Service at all. We note that the Report has deliberately avoided entering into any exploration of whether there should be a FPS. However, we believe that a thorough cost-benefit and wider impact analysis was merited.
This is because the operation of an FPS will be costly for the charity sector and, more importantly, it is likely to have a significant impact on the ability of charities to fundraise to support their crucial charitable work. This is mitigated (but is far from negated) by the fact that, as currently proposed, it will not, in fact, allow individuals to press a “nuclear” end all fundraising button (small charities, unaddressed mail, and face-to-face will be excluded) which many had expected. However, this important compromise raises the additional potential concern that, whilst the fundraising capabilities of charities are still inhibited by the FPS, the FPS in turn can no longer promote the simple solution of giving users a clear “opt out” choice.
Our principal submission is that the FPS may be a somewhat ineffective tool for implementing rights that people already have. Mechanisms already exist that allow people to control their fundraising preferences. Existing legislation already equips individuals with the necessary tools to stop receiving unwanted marketing communications by all means (the Telephone Preference Service, Mail Preference Service and section 11 of the Data Protection Act 1998). Arguably a simpler and more cost-effective way of tackling the public’s concerns meaningfully is to better educate individuals on how to use the means already available to them to stop unwanted fundraising communications. Charities could be required (through amendments to the Code of Fundraising Practice) to take steps to bring to individuals’ attention the rights that they already have to stop unwanted marketing- through more prominent signposting in all fundraising communications.
Page 12 of the Working Group’s report makes the point that the FPS does not need to apply to unaddressed mail on the basis that there are “already a number of measures available for those who want to prevent unaddressed mail”. Our point is and remains that there are already a number of measures available to those who want to stop the other channels of communication that are to be covered by the FPS - email, post and telephone fundraising. In other words the same rationale that the report applies to unaddressed mail applies to these channels. In fact, in better educating individuals on the various mechanisms for opting out of communications which are already available to them, it would be possible to offer them the granularity that the report acknowledges (at page12) that the FPS will not be able to offer by allowing them to be selective about the channel of communication that they wish to block. If the FPS wanted to go one stage further than mere education, it could provide some kind of co-ordinating mechanism for the different services, without introducing yet another service of its own.
Having said all that, we realise that the FPS now looks set to go ahead and on that basis we offer what we hope will be constructive comments on the proposals for its operation.
Comments on the Report
1. We agree with the suggestion of the Working Group that the definition of “fundraising communication” formulated and used by the Fundraising Regulator should be narrower than the ICO’s definition of direct marketing. In particular, it is important that charities should be able to send informational communications about their activities and services, provided they do not contain a direct fundraising ask. Charities and fundraisers will need to be clearly signposted to the ICO’s guidance so that, for instance, they understand that whilst an informational email newsletter may be sent to a person registered on the FPS, such a communication would still require consent for the purposes of PECR in accordance with the ICO’s interpretation of direct marketing. PECR will apply to some but not all of the communications sent to individuals registered with the FPS. It may be that further consideration and guidance is needed on the overlap between FPS rules and the wider legislative and regulatory framework.
2. We welcome the proposal that small fundraisers should not be required to use the FPS in recognition of the disproportionate impact this is likely to have on their fundraising efforts.
3. We have a concern about the operation of the “Small Red Button” under which users will specify the name or names of organisation(s) which they no longer wish to hear from. Will individuals simply type in or explain to a call operator the name of the organisation that they do not wish to hear from? Our concern is that, given the number of similarities that exist between different charity names, there is scope for confusion and miscommunication of a user’s actual intentions – they may use the wrong charity name or use a name that is not the legal name of any charity. What if the user names a small charity that falls outside the remit of FSP? Will this be explained to them? Perhaps a better technical solution would be for users to be required to select from a list of organisations that are registered with FPS. Alternatively, might it be possible for users to be required to specify a charity’s registered number so that confusion is less likely?
4. The Report proposes that those wishing to register vulnerable users on the FPS must have a power of attorney for health, legal and financial matters. For those who register a person on FPS online, how will the service verify whether a user actually has the required power of attorney to exercise this right on behalf of the vulnerable person? Will there be a procedure for verifying that a power of attorney is in place?
5. We welcome the opportunity for charities to “check in” with donors after they have signed up to the FPS to ensure that they intended those particular charities to be covered by their FPS registration. However, our view is that, as currently drafted, the definition of charities which are permitted to send such communications is too narrow. We believe that it should be broadened to include:
5.1 charities that are or have been in correspondence with an individual about potential legacy gifts. Such an individual may not have donated to the charity in the past two years, but it would be reasonable to assume that the FPS registration was not intended to cover an organisation that the individual was in regular and voluntary dialogue with;
5.2 charities which have received consent to send fundraising communications in the past 3 months. The argument here would be that if a person has knowingly given consent to receive fundraising very recently they are unlikely to have intended the FPS registration to cover this particular charity;
5.3 charities that can demonstrate a regular pattern of giving that might not include donations over the past two years, for instance a donor may choose to support a charity with which he or she is in regular communications with donations on a more ad hoc basis. We understand it is quite common for people to give to charities 3 or 4 times over, say, a 20 year period – often in response to fundraising literature.
5.4 charities of which the individual is a signed up member and to which he or she has consented to receiving fundraising materials; and
5.5 charities running weekly or other regular lotteries in which the individual user is a regular participant.
6. Page 17 of the Report suggests that the “check in” communication should only be made via mail. This is likely to result in a very low response rate from FPS users and is likely to reduce significantly the usefulness of this function for charities. We would recommend that charities are able to “check in” with individuals using whatever mode of communication they generally use when in correspondence with that user. For instance, a person might be in regular email dialogue with his or her university. Surely, in checking whether the FPS is intended to cover its communications, the University should be able to contact that person by email in the usual way.
7. We understand that the working group did not take a view on whether trading communications should be considered as a “fundraising communication” and therefore come within the FPS. Our view is that there is a clear distinction between fundraising communications and trading communications. Assuming that “trading communications” includes marketing and other communications relating to the sale of products or services (including charity membership services) these should not be covered by the FPS. Allowing individuals to opt out of receiving any such communications through the FPS would impose a very significant and unnecessary administrative burden on charities. Many charities engaging in primary purpose and lawful non-primary purpose trading could be prevented from marketing their products. This would place charities at a distinct disadvantage compared to their commercial counterparts. It could also complicate the administration of the FPS.
Posted on 20/10/2016 in BWB PublicationsBack to Knowledge