Five years ago the ICO published guidance five years on charities and the Telephone Preference Service, but recently it changed its mind. David Ainsworth tracks the progress of data protection rules for fundraisers.

There have been a number of legitimate complaints about the activities of charity fundraisers and their representatives this year. I think the sector has accepted that on some fronts, reform was needed and was long-overdue.

On others, however, there are one or two more question marks, and one of these is how data protection rules will apply in future. In particular, charities are concerned about the question of consent to call: are fundraisers allowed to get in touch with donors?

One problem here is the mooted creation of a Fundraising Preference Service, which would potentially allow donors to opt out of all communications from all charities for all time. But that’s still on the horizon, and fundraisers will at least have time adjust.

In the meantime, there are big issues with the Telephone Preference Service, where changes have been made virtually without warning.

The issues came to the fore following a sudden volte-face from the Information Commissioner’s Office, which until recently had a fairly liberal stance towards charities and the law, but has now come down hard on the sector.

Much has been made of who is to take the blame for charities’ failure to follow preference service rules, and the Institute of Fundraising has faced criticism. But looking back at the bodies’ public statements, it seems like the ICO has to take the blame. Probably, ironically, because it wanted to avoid coming down too hard on charities.

What’s the background?

In 2010 David Evans, a senior data protection manager at the ICO, explicitly told charities they were allowed to call people registered on the TPS, so long as they received no complaints. Just in case there was any doubt, this was followed up with official guidance which effectively said that the ICO did not intend to apply the law to charities.

In a guidance note published by the FRSB, the ICO said: “In practice, a charity might judge that, given the nature of the relationship between them and the supporter, they might be able to make a marketing call to that subscriber despite TPS registration.

“An obvious example would be where an existing supporter has been receiving calls for some time, has never objected to those calls but has recently registered their number with the TPS.”

The move was seen as a positive one because of widespread problems with the TPS, which covers three in four donors. One issue with TPS is that it covers the number, not the person. Another is that many people have been signed up by their telecoms provider without knowing about it.

The IoF wrote guidance based on that issued by the ICO, and applied a laissez-faire stance. It said that charities should have regard to the TPS, it said, but that charities’ relationship with supporters should also weigh strongly.

In 2013, the law changed around TPS, but the ICO did not approach charities, and gave no indication to the sector that it intended to apply different guidance. On the contrary, donors have since reported that when they did complain to the ICO, they were told that the rules only applied to “commercial organisations”.

Then following the death of poppy seller Olive Cooke, fundraising regulation came under the spotlight. The Daily Mail proved that charities had been involved in the sale of data which ended up with elderly people’s details being passed to crooks. The ICO sat up and took notice.

Its response was to demand an instant change to the IoF guidance, which it received shortly afterwards, albeit with noticeable reluctance on the part of the IoF.

Unsurprisingly, the sector found itself in a confused position. For years the ICO had been clear that it would sanction a certain standard of behaviour, and overnight, that standard had changed. The situation was not helped by a period of uncertainty, earlier this summer, during which the ICO indicated a need for changes but did not clarify its position to the sector. Charities were given no transition period to manage the changes, and many have found themselves unable, overnight, to communicate by phone with most of their supporter database.

What does this mean?

It is far from certain that the ICO’s change of stance is likely to be a bad thing in the long run; many donors have spoken about how annoying they find fundraising calls, and the sector could have been alienating its supporters by using this method.

The issue is that the ICO has behaved unfairly. Its decision to change the rules overnight – understandable in the circumstances – contravenes the normal process of changing regulation. Normally consultation and a grace period precedes any shift.

In this case the ICO has justified the absence of such measures by suggesting that it changed the rules several years ago, and charities failed to follow them. However its own public pronouncements appear to suggest this is not entirely fair.

When the regulator appeared before the Public Administration and Constitutional Affairs Committee last month, its leaders shifted the blame to the IoF and to charities themselves. The IoF had been slow to change, it said, and it had written to eight large charities last year to warn of their behaviour.

However in the case of the TPS, the ICO itself must bear the lion’s share of the blame. It made the exception, and it cannot suggest that charities have been remiss for following its lead.

In other countries there is a separate TPS for charities. Here in the UK the sector was relying on a nod and a wink, and that led to an unsatisfactory situation.

It’s a situation which has been common in negotiations with government bodies. A law gets written, usually without charities in mind, which makes life extremely hard for the sector. Charities lobby for an exception on the face of the bill. One official or another says that’s too legally complex, too politically difficult, or not possible for some other reason, but offers an emollient proposition in exchange. “Don’t worry,” the charity is told. “You carry on just the same. We all understand the rules don’t apply to you.”

Five years later the political winds have changed and the official is nowhere to be seen. A storm brews and a new official makes their way to the door. “Why are you not following the rules?” they say.

“We had a sweetheart deal,” the charity says.

“Really?” says the official. “I don’t know anything about that. And I don’t care.”