The Information Commissioner, the Fundraising Regulator and the Charity Commission are due to meet fundraisers in Manchester tomorrow, on Tuesday 21st February, for the Fundraising and Regulatory Compliance Conference. The ICO have produced a conference paper for delegates to read prior to 21st, which can be accessed here.
The paper, amongst other things, sets out the ICO’s view of data protection in relation to Database Screening and, it seems, prospect research – although, whilst it mentions ‘Screening’ specifically, the paper rather ambiguously only refers to other [research] “…activities such as profiling individuals”. We do need to get some clarification on what they mean by this but, from the context, it does appear to refer to researching donors and supporters using public domain sources and/or using information not supplied directly by the data subject (so, prospect research).
The conference paper outlines situations in which such a policy must be communicated to a supporter, some ways this can be done, and even when it is not necessary / practical to do so. This is all useful and welcome information. We now hope that perhaps the Fundraising Regulator will issue some sample privacy policies at the conference on Tuesday that provide examples of the language that charities can use to comply with fair processing of data for fundraising.
However, the paper then states that it is ‘highly unlikely’ that charities will be able to rely on legitimate interests as a condition to process data for Database Screening – specifically using third party providers or involving any personal data not supplied by the data subject – or for ‘profiling individuals’. Instead these activities will require explicit consent from data subjects. This is because, the ICO states, these activities are a) not ‘compatible’ with processing data collected from a donor at the point of donation and b) not within the ‘reasonable expectations’ of a donor.
Please read the conference paper. Think about how it will affect you and your work and highlight any areas you feel are not clear. The conference on 21st February is a very important event and the questions we ask (and the answers we receive) about this paper are likely to have a long-term effect on fundraising and research. If you are not going to be at the conference on Tuesday, you can pass any questions that you may have about it directly to the ICO (send them to firstname.lastname@example.org and ask for them to be forwarded to the relevant dept).
Below are 5 of the questions we would like to ask, now that we have read the paper:
- The ICO say in its paper for this conference that individuals are “highly unlikely to expect” certain types of data processing. In the ICO’s press release announcing the British Heart Foundation and RSPCA monetary penalties they are quoted as saying “millions of people who give their time and money to benefit good causes will be saddened…” to know that charities would ask them for more money.
- Does the ICO have evidence that shows what donors expect?
- There is, in fact, strong evidence to support the fact that processing of personal data for research is within the reasonable expectations of many donors; a recent study concluded that 78% of donors said that better research before they are approached by a non-profit is the most significant area of improvement in fundraising in the past 10 years. Therefore, if fair processing is adhered to and prospect research is within the reasonable expectations of donors, then can the ICO confirm that charities can rely on legitimate interests to undertake this type of activity?
- ICO, Fundraising and regulatory compliance, 21st February 2017
- ICO investigation reveals how charities have been exploiting supporters, 16th December 2016
- Breeze & Lloyd, (2013); Why Rich People Give. London, DSC.
- If not, why not?
- The paper for the conference says: “It’s legitimate for you to process personal data in order to properly administer donations received from individuals”. The paper suggests throughout, as highlighted above, that “administering donations” is the only purpose for which a charity would use data collected at the point of donation or at the point a supporter joins a charity database. It suggests, therefore, that fundraising (including the market research necessary for raising funds) is not a compatible purpose for processing donation information.
- Is it?
- As charities rely on fundraising to carry out their work, is it not within their legitimate interests to use data collected from supporters for fundraising purposes, providing that fair processing and the rules of PECR, the MPS/TPS/FPS etc. are all adhered to?
- Here is a common story: a charity Board member meets an individual at, say, a cocktail party. The Board member comes back to the charity fundraiser with the individual’s name and says “X is interested in what we do. And he is wealthy.” The ICO says in its paper for this conference: “Far more intrusive are activities such as profiling individuals, particularly where this involves getting more information that the individual has not given you, either directly or via third-party companies. In these cases the legitimate interest condition is highly unlikely to apply. So you’d need to seek the consent of individuals before doing such processing.”
- The X named by our Board member is not a donor. We have no permissions or opt-ins or opt-outs. Can we look him up on Google or LinkedIn or Companies House without his permission?
- Given that we want to research a potential donor before she does this, whose guidance should we follow – that of the ICO or that of the Charity Commission?
- Source: Charity Commission for England and Wales, Tool 6: Know Your Donor – Key Questions
These are just some of the questions we feel require clarification from the ICO and we’ll be submitting these prior to the event. We will also be attending the event on Tuesday and we’ll report back on what happened as soon as possible afterwards through this blog.
Please also keep an eye on Factary’s Twitter feed during the day as we will attempt, where possible, to Tweet any significant points or answers to any questions raised during the conference.