OPINION: ICO ruling on telephone fundraising is ethically-unbalanced regulation

Ian copyThe ICO’s recent ruling on contacting TPS-registered donors is ethically-unbalanced regulation that potentially harms beneficiaries, argues Ian MacQuillin.

Last month the Information Commissioner’s Office (ICO) summarily revoked the guidance it provided to the sector five years ago on how charities may contact those of their supporters who are registered with the Telephone Preference Service.

In 2010, the ICO told the Institute of Fundraising that, while a technical breach of the Privacy and Electronic Communications Regulation 2003 (PECR), charities could continue to contact people with whom they had existing relationships, if they believed those people would not object to the call, even if they were registered with the TPS.

This advice from ICO was written into the IoF’s code of practice. Yet this month, ICO ordered the IoF to amend the code, outlawing the contacting of any supporter who is TPS-registered who hasn’t provided consent to receive marketing calls (see ss98-99 of the ICO guidance). Charities are forbidden to phone those supporters to ask them if they are happy to receive calls from the organisations they support.

“Just because the ICO can take a course of action doesn’t mean that it ought to take that course of action.”

Telephone fundraising agencies estimate that this means charities are now unable to contact by phone 75 per cent of their supporter base.

This is rather poor performance from a regulator – it issued unsound guidance that a whole industry subsector has been following for five years, and is now being penalised for following this guidance. And let’s be totally frank, if it hadn’t been for the media-driven chain of events that followed Mrs Cooke’s death, it seems unlikely ICO would even have considered this change.

But more relevantly to my area of interest, ICO’s decision highlights the need for a more sophisticated concept of professional ethics in fundraising.

Rogare is working on a project to develop a new normative theory of fundraising ethics. (I outlined our preliminary thinking on this subject in a Critical Fundraising blog in June and I’ll be presenting these ideas in October at IFC, IoF Scotland and at an awayday of our Associate Members.)

We are aiming to develop a theory that defines ethical fundraising as that which balances the duty of fundraisers to their raise as much money as they can to provide services for their beneficiaries, against their duty not to put their donors under undue pressure to donate.

ICO’s previous guidance struck such a sensible balance, but we have to ask whether this condition is satisfied by the ICO’s new requirements.

As charities are now unable to contact by phone 75 per cent of their existing warm supporters, has the balance shifted to the extent that the duty to donors (in this case to protect their privacy) now vastly outweighs the duty fundraisers owe to their charities’ beneficiaries?

I think it has, and the hyperbolic media reaction to Mrs Cooke’s death has now led to ethically-unbalanced regulation.

The ‘do no harm’ principle

Among those 75 per cent of supporters will be hundreds of thousands of people who will most likely be shocked and surprised that the charity they passionately support would be breaking the law and risking a massive fine if the charity telephoned them.

The sensible solution is simply for the ICO to grant a one-off dispensation to call those supporters to ask if they are happy to receive fundraising calls in the future. This is the solution proposed by telephone fundraising agency and Rogare associate member Ethicall in a new white paper, which Ethicall distributed to its clients a couple of weeks ago.

Defenders of the ICO’s action will probably say that their instruction follows the letter of the law. No-one is arguing with this. But just because the ICO can take a course of action doesn’t mean that it ought to take that course of action (and perhaps in a less febrile media environment, ICO might have taken a different decision).

In this case, ICO’s legal remit extends only to consumers who receive telephone calls from charities and it has taken action to protect the privacy of those consumers. But ICO’s moral remit extends to beneficiaries of the charities who benefit from the calls made to those consumers.

This moral remit derives from the principle of ‘nonmalifence’, or the moral principle not to cause avoidable harm, which sits alongside the principle of beneficence, which is the moral obligation to do good things. In the medical profession, the principle of nonmalifence (the ‘do not harm’ principle) is manifested, for example, in a requirement not to prescribe treatments whose side-effects outweigh potential benefits. One philosopher, Bernard Gert or Dartmouth College in New Hampshire, has constructed an ethical theory based primarily on the avoidance of bad consequences rather than the promotion of good consequences (see his book Common Morality: Deciding What To Do).

In this case, does the harm to beneficiaries that would be avoided by allowing charities to contact donors to ask permission to contact them in the future for fundraising purposes, outweigh the harm done to donors by receiving such a call? To me the answer is a no-brainer.

Regulation of the type enacted by ICO and of the type proposed following the suicide of Olive Cooke has real potential to do harm – not to donors, not even to charities (though that potential is real enough), but to the people charities exist to serve.

As so often happens when the practice of fundraising comes under the spotlight, it is the rights of donors that take precedence over the rights of beneficiaries. And as so often happens, it doesn’t appear that it’s been recognised that beneficiaries have any relevant rights.

  • Ian MacQuillin is director of Rogare – The Fundraising Think Tank. Ethicall’s white paper, which also includes as an appendix Hugh McCaw’s white paper calling for reform of the TPS (which argues that the regulations governing telecommunications were directed at commercial telesales and never intended to capture charity fundraising), can be obtained by emailing David Walwin at Ethicall. This blog is based on Ian MacQuillin’s foreword to Ethicall’s white paper.

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