In its recently updated Guidance on Direct Marketing, the ICO has focussed on charity fundraising, provided more clarity surrounding obtaining consent and (specifically) highlighted third-party consent. A tightening up of the wording in some areas may be seen as an indication of a more robust stance being taken by the regulator.
Charity fundraising methods have been firmly in the spotlight and the updated guidance certainly reflects this. In a blog post, ICO Head of Policy Delivery, Steve Wood said, “It is important to remember that the law requires charities to follow the same rules as any other organisations, but the high-profile difficulties some have found in meeting that requirement has meant we’ve provided more advice to this sector within the guidance, including specific examples.”
Charities are warned they must follow the same rules as commercial organisation and the ICO stresses the definition of direct marketing covers any messages that contain marketing elements, even if they is not the main purpose of the message. A new example is provided to highlight this, showing the difference between a straight-forward admin call and an admin call with an added fundraising element.
Example (from guidance):
A charity makes an administrative telephone call to an individual who has set up direct debit donations with a high street fundraiser as they wish to confirm the individual’s bank details. If the call simply confirms the details then it will not be covered by the direct marketing rules.
However if the charity uses this administrative call to suggest that the individual increases their donation or provides any other information promoting the charity’s work then this will mean that the call ceases to be purely administrative and the direct marketing rules will apply.
As an aside, this example may raise concerns amongst those trying to protect vulnerable and elderly people from ever discussing bank details over the telephone.
In order to override the TPS, charities are also warned they must ensure individuals have specifically consented to receive marketing calls from them, and this includes existing supporters. It‘s also stressed organisations must clearly and prominently obtain specific consent for electronic marketing and that soft opt-in is only permissible for the marketing of products. (Also see Telemarketing Campaigns – Practical Guidance and Due Diligence)
Perhaps unsurprisingly, specific direction has been included concerning the practice of sharing and selling marketing lists between charities. It stresses transparency with supporters – Charities must make clear when personal details are collected they might be shared and that donors have specifically consented to this. The guidance specifically states; “consent cannot be inferred from supporters just because a marketing list is to be shared with or sold to an organisation which has similar aims/objectives to the originating organisation”.
Published April 2016
The ICO’s Direct Marketing Guidance – (in full)
Key changes in the new ICO Direct Marketing Guidance
The information provided and the opinions expressed in this document represent the views of the Data Protection Network. They do not constitute legal advice and cannot be construed as offering comprehensive guidance on the EU General Data Protection Regulation (GDPR) or other statutory measures referred to.