Planned changes to fundraising code would ‘shift the goalposts’, says IoF policy chief

In a blog on the Institute of Fundraising website, Daniel Fluskey says proposed amendments to the Code of Fundraising Practice need a rethink

Proposed updates to the Code of Fundraising Practice could represent a “fundamental shift in goalposts” for the Mailing Preference Service, the Institute of Fundraising has said.

In a blog on the IoF website, Daniel Fluskey, head of policy and research at the IoF, gave his initial thoughts on the draft version of the code, which the Fundraising Regulator has put out for consultation.

The new version of the code has been updated to include the requirements of the General Data Protection Regulation, EU legislation due to come into force next year.

But in his blog Fluskey warned the proposals about the MPS, a service set up by the Direct Marketing Association to limit unsolicited mailing, needed a rethink.

The new version of the code says organisations must not send direct marketing materials to people registered with the MPS unless they have notified the organisation specifically that they consent to receiving mail from them. The existing version says simply that organisations have to check their databases against the MPS to ensure they are not contacting anyone who does not want to be.

Fluskey said: “The proposal would mean that unless individuals have provided consent to that charity, no direct marketing mailings can be sent. That is a fundamental shift of the goalposts as to what was in the code before and, indeed, significantly changes what the MPS was set up to do.”

Fluskey wrote that the MPS told those signing up to it they would still receive mail from organisations they had done business with in the past, so organisations could still contact those on the MPS if they could demonstrate they had a legitimate interest in doing so.

But he said the changes to the code would exclude legitimate interest and would mean the relationship between a charity and someone who had been engaging with it for years could be wiped out.

“It also means that people signing up to the MPS are clearly told one thing, and sign up on that basis, but actually receive a different experience in reality,” he said.

“I don’t believe that this builds clarity and transparency. This proposal needs a rethink and we’ll be looking at it carefully.”

Fluskey said that other proposed changes needed more detail, such as the requirement that charities should keep up to date with and have regard to relevant guidance from the Information Commissioner’s Office.

He said it would be useful to know whether “have regard to” should be taken to mean “follow”. He questioned whether an organisation would be in breach of the code if it could show it had read the guidance, but decided to take a different, but still legally compliant approach.

He said clarification was needed on the section that dealt with legitimate interest, and there should be more guidance and examples of how charities could explain to donors, clearly but succinctly, their rationale for contacting them using legitimate interest.

But he welcomed the updates to the code overall, saying it was a good thing to ensure that fundraisers understood their responsibilities under the GDPR. He said the inclusion of both consent and legitimate interest as valid grounds for contacting potential donors was “very welcome”.

The consultation will run until 8 December and can be found on the Fundraising Regulator’s website.

A spokeswoman for the Fundraising Regulator said: “As we are in the consultation process, we welcome the insight of the IoF, along with any charities, fundraisers and members of the public who wish to feed back on the proposed changes.”

She urged those who wanted to offer feedback to take part in the consultation.

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Regulator launches consultation on GDPR changes to fundraising code

The Fundraising Regulator has launched a consultation on the changes it plans to make to the Code of Fundraising Practice to include the requirements of the General Data Protection Regulation.

The regulator is asking for views from charities, fundraisers and members of the public on an updated version of the code covering GDPR, stringent data protection laws due to come into force from March.

The consultation will run until 8 December and the new version of the code will be released in the spring, the regulator said in a statement today.

The regulator said the updated code would also address the issues raised by the fines levied by the Information Commissioner’s Office against 13 charities over data protection breaches in the past two years.

The new version of the code will ensure the regulator’s guidance and terminology is consistent with that used in the GDPR legislation and will signpost users to other guidance from the regulator and the ICO, the statement said.

The updated version of the code includes three new sections to explain areas where there have been calls for greater clarity and guidance on what the new rules mean.

One of the new sections explains what counts as processing someone’s personal data and when data protection rules apply. This section says data matching and wealth screening, two of the activities that led the ICO to issue fines to charities that had carried them out without donors’ knowledge, count as processing someone’s data. 

Another section focuses on consent, which will use the ICO’s draft GDPR guidance to explain how charities can obtain consent to process people’s data.

The final new section offers advice on legitimate interest, which allows organisations to process people’s data without obtaining consent.

The ICO has not yet published guidance on legitimate interest, so the information in the code will be drawn from the GDPR legislation itself and the recommendations of a working group on donor communications set up by the National Council for Voluntary Organisations.

The new code also warns charities must keep up to date with the latest guidance from the ICO.  

Suzanne McCarthy, chair of the Fundraising Regulator’s standards committee, said: “Protecting personal data is a fundamental part of meeting the key principles of legal, open, honest and respectful fundraising within the code.

“We welcome views on whether the changes proposed are clear in communicating fundraisers’ legal and ethical responsibilities on data.”

The consultation document is available here. 

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Regulator to update fundraising code to include standards for online giving platforms

It is one of the developments from a meeting last week involving the Fundraising Regulator, Charity Commission and major giving platforms

The Fundraising Regulator will update the Code of Fundraising Practice to include standards for online giving platforms, following a meeting between charity regulators and the platforms last week.

The Fundraising Regulator, the Charity Commission and representatives from 14 of the online giving platforms met last week to discuss issues such as how to tackle fraud on websites that allow people to set up fundraising pages.

In a joint statement published yesterday, attendees at the meeting said the code had been among the topics discussed.

The statement said: “The Fundraising Regulator is reviewing the Code of Fundraising Practice and wants to update and expand the standards for online fundraising set out in the code.

“Platforms will work with the Fundraising Regulator to contribute to the review of the code.”

The regulator last month announced a wider consultation on possible changes to the code, which is due to be launched later this month.

At the meeting, the platforms also committed to working with the regulators to review “their resilience to fraud and to create a new forum to share advice and intelligence about potential fraud threats”, the joint statement said.

And they have committed to offering advice and guidance to the individuals setting up fundraising pages about the choices available to them and their responsibilities.

Although all the platforms said they already had robust anti-fraud measures in place, the statement said: “More can be done, working collaboratively, to ensure clear and consistent advice across different platforms and generally to the public.

“It is critical to avoid confusion about, for example, accountability to the Charity Commission, eligibility for Gift Aid, and what happens in the event of a failed appeal.

“Platforms agree to work with the Charity Commission and Fundraising Regulator to agree and disseminate clear and consistent public advice about the choices available for donating.

The Charity Commission and the Fundraising Regulator will report back to Tracey Crouch, the Minister for Civil Society, on the progress of discussions and whether they think the current regulatory framework is adequate, the statement said.

It added that online fundraising platforms that had not attended the meeting were invited to join future discussions.

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Charities will not face regulatory action for failing to apply new governance code, says Sarah Atkinson

But the director of policy and communications at the Charity Commission says the regulator will use the document to determine the overall health of the organisation

The Charity Commission will not take regulatory action against charities that fail to apply the new sector governance code, but will use it to determine the overall health of the organisation, according to Sarah Atkinson, director of policy and communications at the Charity Commission.

Speaking at the law firm Bates Wells Braithwaite’s annual charity and social enterprise tea party yesterday, Atkinson said that because the Charity Governance Code was voluntary, it would not form the basis for regulatory action, and said the commission was keen to avoid “regulatory creep”.

The Charity Governance Code, which was revised earlier this year, recommends a number of policies including larger charities submitting to an external reviews every three years.

Atkinson told the conference that charities would not be subject to regulatory action solely because they were not applying the code, or because they had not heard of it. 

“But we will think you are a stronger charity better equipped to face the challenges that you have if you are familiar with and applying the code,” she said. 

She said the commission would refer to the code when considering any sector-wider recommendations as part of a statutory inquiry.

“What we will take regulatory action on is our guidance set out in trustee duties,” she said.

Atkinson also said that she hoped the release of the code was “very much the start of what needs to be a process to socialise the code and create a movement around good governance”.

The code also recommends that charities review whether to retain trustees that have served nine years or more in the role, and Atkinson said it was important that decisions to keep trustees in place were taken in the best interests of the charity.

“It is important that when people want to stay for a long time, it is because the charity needs them, not because they need the charity,” she said.

“It can’t be about you – there has to be other ways you can continue to support and love that organisation. It has to be that the charity has particular need of something you can continue to bring, and continue to bring afresh.”

Philip Kirkpatrick, co-head of the charities and social enterprise team at BWB, said that it was important to balance “the need for continuity and knowledge, and the need for innovation and new ideas, and of course allowing for diversity” when deciding whether to extend trustees’ term of office past nine years.

He also said that there was a risk that the code “becomes a stick to beat people with rather than what the code team wanted it to be, which is an aspirational thing to pull people up”.

Also speaking at the conference, Rosie Chapman, chair of the Charity Governance Code Steering Group, which oversaw the redevelopment of the new code, said that she thought the latest version was realistic, but said that some charities already meeting other organisations’ governance codes, such as housing associations or sports charities, “might as well continue to meet their codes” to ensure funding remains in place.

Baroness Pitkeathley, chair of the House of Lords Select Committee on Charities, said that despite the pressures on modern trustees, the sector should be cautious about overemphasising the difficulties ahead of the benefits of trusteeship.

“I think we pile more and more responsibility onto trustees, and perhaps we should be cautious about emphasising all the possible negatives that there are in the responsibilities from being a trustee,” she said.

“I personally have had huge joy from being a trustee – I have learnt things, I have developed skills and I have had terrific experiences. I think we should always remember that when we think about the extras we are giving to trustees.”

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Fundraising Regulator to consult on changes to code of practice

Stephen Service, policy manager at the regulator, tells Third Sector’s briefing on the General Data Protection Regulation that the consultation will begin next month and finish in December

The Fundraising Regulator will next month consult the sector on changes to the Code of Fundraising Practice to bring it in line with the General Data Protection Regulation.

Speaking at Third Sector’s GDPR briefing event in central London this morning, Stephen Service, policy manager at the Fundraising Regulator, said a consultation on the proposed changes would be launched next month and would last until mid-December.

He said the watchdog would remove and replace parts of the code that were inconsistent with the stringent new data-protection rules, which are due to come into force in May.

The key changes would then be finalised, put to the regulator’s board for approval in January and published from February 2018, before the implementation of the GDPR, said Service.

He said the consultation would “cover the proposed changes and the best way to ensure the changes are communicated effectively, because it is really important to make sure that the sector as a whole knows what’s expected of it”.

He said the regulator would ensure all terminology used in the new version of the code was consistent with the GDPR and the new version would contain definitions of key terms.

“We want to make the rules on data protection more accessible, bringing them into a single section in the code, rather than where it is at the moment – all mixed up and spread out throughout the code,” he said.

The section of the new version of the code focusing on data protection would contain three sub-sections, he said, on processing, consent and legitimate interests.

In July, Gerald Oppenheim, head of policy at the Fundraising Regulator, said the GDPR would require between 50 and 60 changes to the code in order to make it compliant.

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GDPR will bring 50 or 60 changes to code, says regulator’s head of policy

Gerald Oppenheim of the Fundraising Regulator says the General Data Protection Regulation, due next year, will have to be written into the Code of Fundraising Practice at some point

The introduction of the General Data Protection Regulation will require 50 to 60 changes to the Code of Fundraising Practice, according to Gerald Oppenheim, head of policy at the Fundraising Regulator.

Speaking at the Institute of Fundraising’s fundraising convention in London yesterday, he said the regulator was working through the code to find out how it would be affected by the GDPR, new European data-protection legislation that is due to come into force in May 2018.

He said updating the code to take the new rules into account would be a complicated undertaking.

“The GDPR will have to be written into the code very clearly at some point,” Oppenheim said.

“We have already started looking through the code at where it refers to data protection, even in the most general sense,” he said. “We’ve found 50 to 60 places where the code needs to change, even where it’s just a wording change or something as simple as that.”

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He said the regulator was waiting for the Information Commissioner’s Office to issue its final guidance on the GDPR after it ran a consultation on draft guidance throughout March.

“We’re still waiting for that consultation document to be turned into further guidance from the ICO,” Oppenheim said. “That will obviously affect how we change the code.”

He said he did not expect to be ready to reveal the code changes to the sector until later in the summer.

During the same session, Daniel Fluskey, head of policy and research at the IoF, said the umbrella body would not be releasing guidance telling charities whether or not to change their policies on communication to opt-in only.

Each charity would have to make the decision for itself based on its individual circumstances, he said.

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Fundraising code amended as launch of preference service looms

The Fundraising Preference Service will be launched next week, and the Fundraising Regulator has adjusted the Code of Fundraising Practice to take this into account

The Fundraising Regulator has added new rules to the Code of Fundraising Practice to take into account the Fundraising Preference Service, which is due to launch next week.

The FPS, which will be launched officially on 6 July, will allow members of the public to block all contact from specific charities.

The new elements of the code, which come into effect from today, enforce the requirement that any charity receiving a notice from someone through the FPS will have to stop all contact with them within 28 days.

Charities will also be required to stop contact within 28 days if they receive any other kind of indication that the person does not wish to receive communications, the rules say.

The rules also call for charities to ensure that all third-party agencies inform them about and comply with any stop notice they receive.

Suzanne McCarthy, chair of the Fundraising Regulator’s standards committee, said: “It is important that members of the public have confidence that charities will respect their communication preferences.

“The changes made to the code today support the introduction of the new FPS and require all charities to stop sending direct marketing communications on receipt of a request made through the service.”

Stephen Dunmore, chief executive of the Fundraising Regulator, said the watchdog had written to the charities that do the most fundraising to ensure they were ready to receive FPS requests.

“While only these largest charities need to register at this stage, all charities need to make sure they know what the FPS is and are ready in the event that they receive a ‘stop’ notification,” he said.

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