This week the Fundraising Regulator launched the Fundraising Preference Service (FPS). There is a lot of confusion over what the FPS is, who it applies to and what happens if charities don't respect an individual's preferences.
What is the Fundraising Preference Service?
The FPS is a service operated by the Fundraising Regulator. It is similar to the Telephone Preference Service or Mail Preference Service, except that the FPS is an industry led self-regulation initiative. Members of the public can sign up to the service in order to set out their wishes regarding fundraising contact - identifying any methods of contact which they do not wish to receive, or charities from whom they do not wish to be contacted.
Is it mandatory?
Yes, for charities registered in England and Wales that are registered with the Fundraising Regulator. The Fundraising Regulator considers this part of its remit to improve the image of the sector.
However, registration with the Fundraising Regulator is not currently mandatory. Charities that register are entitled to use the Fundraising Regulator's badge on their materials. It is possible that statutory registration will be implemented in future, if industry self-regulation does not address the concerns that the Fundraising Regulator is intended to address.
Does the FPS apply to Scottish-registered charities?
No. The rules apply based on where the charity is primarily registered. Charities primarily registered in Scotland are regulated by OSCR, which has chosen not to implement the FPS. This applies where a Scottish-registered charity performs fundraising in England. However, if a charity is primarily registered in England but fundraises in Scotland, it will be required to comply with the FPS - even where the individual who has registered preferences resides in Scotland.
While the FPS does not apply directly in Scotland (and nor does the Fundraising Regulator), high standards in fundraising are expected in Scotland. Individuals can use of a new system of fundraising oversight in Scotland to raise concerns and make complaints. In addition, the powers of OSCR remain to investigate matters themselves or concerns raised by the public. For more on the new Scottish Fundraising and Adjudication Panel in this blog post.
Remember, even though Scottish charities are not required to comply with the FPS, the underlying rules on marketing in the Data Protection Act (DPA) and the Electronic Privacy Regulations apply throughout the UK. The FPS is simply a industry self-regulatory scheme that sits on top of existing laws.
Charities should also remember that the DPA will be replaced next year by the General Data Protection Regulation (GDPR), which introduces tougher rules on the use of personal data and obtaining consent to marketing. It is also expected that the Electronic Privacy Regulations will be updated at the same time. Find out more on our GDPR Hub.
How do individuals sign up for the FPS?
Individuals sign up online through a dedicated portal, which they can use to find charities by whom they do not wish to be contacted, then select the methods (whether phone, email, post or SMS) by which they do not wish to be contacted.
Can I use the FPS to stop all fundraising communication?
The service does not allow individuals to simply opt out of all fundraising contact from every charity. Users will instead be directed to the pre-existing Mail and Telephone Preference Services which do allow a total block on contact.
I am an individual living in Scotland. Can I sign up to the FPS?
Any individual within the UK may sign up to the FPS. However, as the FPS only covers charities registered in England and Wales, only these charities will be caught by the preferences you enter. Many charities which are registered in England and Wales engage in fundraising throughout the UK and these will be affected. Charities which are registered only in Scotland will not be affected.
Are charities still required to maintain their own system for managing complaints?
The FPS does not remove charities' responsibility for managing their own complaints. The service is an addition to charities' responsibilities and the complaints procedure may still be called upon.
What are the consequences of failing to comply with an individual's registered preferences?
As a self-regulatory body, the Fundraising Regulator does not have the power to impose fines upon charities. Charities which fail to comply will instead be reported to the Information Commissioner's Office and may be subject to fines or other enforcement action if the charity is found to have breached the Data Protection Act or the Electronic Privacy Regulations.
In December, the ICO fined the RSPCA and the British Heart Foundation for misuse of individuals' personal data in relation to fundraising. Further fines to another 11 charities were issued in April this year. In addition to these fines, charities run the risk of adverse publicity and the associated reputational damage. This service was set up partly as a response to negative press generated by unrestricted fundraising in the past; it is therefore likely that breaches will incur further negative press coverage.
Where can I find out more?
To find out more about the regulation of fundraising, or your preparations for the General Data Protection Regulation, please get in touch with our Charities or Information Law teams.
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