From Ken Burnett writer, publisher,
motivational speaker and occasional fundraising consultant.
Blog 2nd May 2017
‘It is important for me to stress that the consultation
we have just undergone is on our guidance on consent only. It was never intended to cover the subject of the legitimate interests condition for processing in addition to consent… (it's) a significant issue in its own right… The legitimate interests condition will be dealt with in separate guidance later in the run up to GDPR implementation.’
UK Information Commissioner,
27th April 2017
Hopefully, wisdom and common sense will prevail so donors will be given all the control and choice they need and charities will be free to go about their essential business unhampered by pointless restrictions that can only harm the great social good they deliver.
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Fundraising regulation may seem boring and complicated but it’s also massively important. Charities can’t afford not to get this right.
Recently, at a meeting of leading fundraising directors, one of the assembled group said, ‘My job now is managing decline’. About one third of the gathered FRDs agreed with him, slightly more did not, with the others undecided. At the time, I thought he was being overly pessimistic.
The drift to ‘opt in’ has had me fearing he may not be far wrong.
I’ve long hailed the late Mrs Olive Cooke as a potential patron saint for fundraisers. Dramatic change in fundraising practices is long overdue and, despite their inaccuracies, the media storm generated by the story of Mrs Cooke’s relationship with fundraising charities just before her untimely death seemed a sad, uncomfortable tale that should have positive outcomes.
Many hoped it would push our sector towards a renewed realisation of its responsibilities to donors, leading to a timely overhaul of fundraising practices, in turn stimulating new promises to donors and the prospect of a consistently improved donor experience.
Premature reaction to impending regulatory changes had me fearing fundraising might be irreparably damaged before that change has time to take effect.
These two fears therefore are inextricably linked. Whether the price the UK voluntary sector has to pay for progress will be too high, or not, is now firmly in the hands of the regulators. My take on the Information Commissioner’s second letter, just received, is that any charity deciding to go the opt-in route now doesn’t yet have all the facts, so should wait and see.
Which is something of a relief, for both those worries.
Here’s why I fear the system known as opt in. If charities lose half of their donor file, or more, what will happen to legacy income, down the line? Or more immediately, what will happen to regular giving, or general donations, special events, charity catalogues and just about everything that charities do? The cost of replacing so many expensively recruited donors would be astronomical. Prohibitive. If charities lose half or more of their donors, what will happen to children or animals suffering abuse, to people waiting for life-saving bone marrow matches, to end-of-life care in hospices and an endless host of other urgent human needs? Not to mention the loss of confidence among generous charity supporters that their giving really does make a difference. What will happen to the legions of caring but not particularly close donors who, in their thousands, happily set several charities up for a fiver or a tenner a month by direct debit ages ago and are quite content just to let that run? If active, confirmed consent is construed as the be-all and end-all, what will happen to the donors who only respond when asked for a need that, not surprisingly, they knew nothing about before being asked because up till then the need simply hadn’t arisen, or they were unaware of it?
Both the UK’s Information Commissioner and the Fundraising Regulator have recently issued guidance on the subject of consent, including clear statements of preference from both for ‘opt in’. Readers of my most recent blog will know I’m deeply concerned about the unforeseen consequences of this preference if trustee boards and others are encouraged to see it as the only option they can safely follow.
The first letter opposite was sent to both the Fundraising Regulator and the Information Commissioner on 13th March. Giles Pegram and I put the main thrust of what’s in the second letter to Gerald Oppenheim and Stephen Service of the Fundraising Regulator when we met with them just before Easter.
The second letter calls for the guidance to be revised to make it clear that,
• For some channels (eg communicating by post) there are viable, acceptable alternatives to opt-in consent, for charities.
• ‘Legitimate interest’ is a valid basis for communicating with donors, under which charities can send them, by post, details of the work their donations have supported.
• Best practice consent based on opt in could have damaging consequences for donors, and for the causes they have supported, in lost income and lost donors.
• Though opt out cannot be used as a route to consent, legitimate interest is valid, particularly if it can be a way of providing donors with choices that enable them to control what they do or don’t wish to receive from causes they have supported.
As you’ll see from these letters opposite I’ve also asked for further confirmation that the system known as continuous donor choice, see opposite, will be a valid, permissible route to communicating with donors beyond the introduction of the GDPR regulations in May 2018.
I had hoped that the the Information Commissioner’s reply to the questions above would dispel the widespread anxiety on the issue that seems to grow by the day. It hasn’t. Instead, we have to wait. Which should mean just that, no hasty, partly-informed decisions, from now.
Hopefully, wisdom and common sense will prevail so donors will be given all the control and choice they need and charities will be free to go about their essential business unhampered by pointless restrictions that can only harm the great social good they deliver, day in, day out, for all.
Continued top of column 2, above.
Fundraisers all want to follow the law, I’m sure, but beyond even that, they all want to do the right thing by their beneficiaries and by their donors. The law is not an end in itself. How it is formulated really matters. For more on the rule of law and how it might inspire donors and fundraisers see Fundraising and the rule of law, here.
I’ve been corresponding with the Information Commissioner and the Fundraising Regulator seeking clarity on their latest guidance on the ‘opt in/opt out’ debate. To download a pdf of each letter just click on the image below. Apologies for giving you so much reading. But this is important. If time is tight, just read letters 3 and 4.
Click to download
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Continued from column 1, below.
From the Information Commissioner’s latest letter I’m encouraged to learn there will be further consultation on ‘legitimate interest’. That’s news, to me. She hasn’t answered my direct questions, but indicates that after consultation, she will.
This seems to clearly signal that any charity contemplating making a decision about going down the ‘opt-in’ route any time soon would be acting prematurely.
Any charity tempted to follow the example set by RNLI would also be advised to wait and see the promised guidance on ‘legitimate interest’. RNLI is just about as untypical a charity as there could be. Quite apart from the benefits of being first, RNLI is one of the very few charities easily able to absorb losses from opt in. And given that RNLI is arguably the most trusted, respected organisation in the land, it’s almost invariably going to get much better results than just about anyone else.
Further analysis of the implications of opt in and legitimate interest is due soon from the Institute of Fundraising. So the message is clear. Wait. There is no need for any charity to rush into opt in.
But more than that, isn’t it time, if not passed time, that our sector united to make a concerted call for clarity and common sense in the interpretation and implementation of these new rules? Unsurprisingly the regulators may not fully understand fundraising. So they’re approaching this from a ‘legal interpretation’ perspective, not from a ‘donors best interests’ perspective. We should be urging them to change. They have shown they are not unreasonable people. Why is our sector not campaigning to get the right, donor-based approach expressed more clearly and concisely?
© Ken Burnett 2017
NB. For guidance and advice on this complex topic, thanks in particular to Giles Pegram, Jackie Fowler, Tim Connor, Richard Spencer, Helen McEachern, Helen Pattinson, Joe Jenkins and to the offices of the Fundraising Regulator and the Information Commissioner.
NB2. The Camphill Village Trust’s system for offering donors effective and practical control of what they receive (known as continuous donor choice) can be seen here.
NB3.The views in this blog are my own and don’t represent any organisation or other body.
Related earlier blogs:
• ‘Opt in’ will be bad for donors and for the causes they support.
• Continuous donor choice.
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