It should be resisted, vigorously and comprehensively. Here’s why.
I’m no enthusiast for small print or screeds of regulations. Put the two together and I quickly lose the will to live. So, my response to the UK Information Commissioner’s recent request for consultation on its latest round of draft regulations is unlikely to be comprehensive. Hopefully it’s comprehensible.
I’ve always dreaded imposition of “opt in” from those on the outside who don’t get fundraising and fail to grasp why it’s so fundamental to the national treasure that is our voluntary sector, with the massive social good our charities make possible. The threat of opt in has been around for decades. Effective self-regulation might have kept it at bay, but many believe our sector has failed to make self-regulation work and now, unless we take concerted action, those who depend on charities and their services may be about to pay the heaviest possible price for that failure.
There is a seductive logic to opt in, which quickly falls apart if you understand fundraising and how donors, like other people, react to requests to either opt in to or opt out of anything. Fine in theory, offers to opt in to marginally important activities won’t work in practice because of simple inertia – the most consistent human response to just about anything.
Of course, fundraisers don’t want to send material to people who have no possible interest in receiving it. It’s a waste of time, money and goodwill. But with charity donors there’s a massive grey area because so many supporters are happy to sustain a basket of causes they get only intangible benefit from and rarely give much thought to. Fundraisers don’t want to lose contact with these important past donors who have not in any way indicated that they don’t want to be communicated with. More than 30 years ago, for Camphill Village Trust, we developed a system that works much better (see below), that gives donors practical control and the chance to opt out at any time while allowing dormant supporters to stay connected until they’re ready to give again, or not, as they wish.
When it comes to regular giving, many people happily support a lot of charities with a small regular gift that they soon forget and scarcely miss. How many causes will the average donor be willing to opt in to? Many fewer than he or she might willingly support. If a model based on, say, 10 percent annual attrition suddenly has to replace, say, 30 percent of donors or more, it will quickly become unviable and atrophy. Seriously, do the sums. Some charities have estimated that, if obliged to go the opt-in route, they will lose 50 percent to 85 percent of their donors. New donor acquisition is so expensive now. If retention (by providing a better donor experience) should be the new acquisition, where’s the sense in opt-in?
What’s more, many fundraisers assume that, under opt in, regular giving will continue as before because direct debit payments can be expected to arrive automatically. But fundraisers won’t be able to contact donors who have not opted in to receive communications informing them about what the charity has done with their gifts. Who does that help? As many donors happily let their direct debits run indefinitely, most who don’t hear from the charity will assume they’re either ungrateful or can’t be bothered to acknowledge their gifts, or they’ll simply forget about their giving entirely. How can this be in the interests of a good donor experience? Plus, as ‘silent’ electronic renewal seems to fly directly in the face of the new regulations it’s not clear to me how those donors who simply give electronically automatically will be treated in the future. If regular direct debit donors have to opt in too, the current funding model for many charities seems perilously vulnerable.
What should we do about it?
As a private individual with interest in and experience of this, I’ve written at length directly to both the Information Commissioner and the head of policy at the Fundraising Regulator. Both have responded helpfully, confirming my belief that they’re open and well-intentioned. When I’ve had their formal responses, I’ll publish them, if appropriate.
Meanwhile, at the suggestion of the ICO’s group manager of corporate governance, I have added my comments to the consultation process. These are predicated on concern about a specific point in both the ICO’s and the Fundraising Regulator’s guidance, which states that opting in “is the ‘clearest’ and ‘safest’ form of consent”. Prior to this we had hoped that charities might avoid the catastrophe that will be opt in by following the “legitimate interest” route. This concern is real because many trustee boards will now be telling their management teams, “Ah, we’d better now follow the advice and go for the safest, clearest route”.
I attach the essence of my contribution, below, from here to the penultimate paragraph. I didn’t have much to say on their first two questions.
3. Do you have any examples of consent in practice, good or bad, that you think would be useful to include in the guidance?
While not quite “consent in practice” as you have defined it, the following is a 30-year prime example of getting it right for donors and for the cause they support. The Camphill Village Trust’s system for offering donors effective and practical control of what they receive (known as continuous donor choice) can be seen here.
4. Does the guidance cover the right issues about consent under the GDPR? What do you believe is missing?
I would like to see a clear statement of equal weight being given to the “legitimate interest” route, which involves practical schemes offering donors control of their relationships with charities via a tailored, donor-friendly opt-out system. By so firmly favouring opt in the ICO will inevitably encourage charities to take the opt-in route, which may have massive unforeseen consequences and could destroy donor-based fundraising for many organisations, leading instead to many more scatter-gun, mass-marketing approaches and greatly reduced income for charities and their beneficiaries
5. Please provide any further comments or suggestions on our draft guidance.
Most fundraisers don’t understand why the ICO and the Fundraising Regulator are so obsessed with consent.
For donors, consent is a red herring. I doubt if any donor anywhere is even slightly concerned whether a charity has legally defined consent to contact them. Surely it has, or at least once had, from receipt of their first gift? If after that initial gift donors are immediately given an easy, instant way to withdraw or modify that consent then the issue is not going to trouble anyone.
Donors want and need practical and effective control of the relationship they have from then on with the causes they wish to support. Donors do not want charity fundraising to be severely damaged in the process of obtaining for them something they neither want nor need, nor can use.
Advising that opt in is the preferred or recommended route for charities will have potentially catastrophic effects on charities’ ability to do direct fundraising with donors. An effective but already challenging and finely balanced financial model seems likely to become unviable for all but the most fortunate and well-resourced fundraising charities.
Rather than focusing on consent and how that is or isn’t achieved, the regulators might have been better to have focused on what is the right practice for donors, that will deliver the right donor experience without damaging the prospects for future fundraising and thus the lives of millions of beneficiaries and the countless worthwhile causes that all depend on effective charity fundraising.
There are other methods of offering donors choice and control of how they are communicated with. With continuous donor choice (CDC) clear, unambiguous consent for a follow-up communication comes initially from the donor’s first gift. Clear, visible and regular ongoing restatement of the data subject’s rights, options and freedoms are an integral part of continuous donor choice, including with all subsequent communications the opportunity to terminate all contact entirely or to choose from a menu of other communications options. If the regulators’ requirements were to be designed with the donor’s interests in mind, CDC should meet all of them.
The only factor that seems to be driving the UK’s voluntary sector into the tragedy of opt in is that continuous donor choice opt out does not satisfy a lawyer’s definition of consent. But is this what the regulators should be focusing on? Is this what donors want? Surely not, if the effects of opt in on regular and single gift giving will be as damaging as seems likely and if an acceptable, proven, donor-friendly alternative already exists?
The ICO and the Fundraising Regulator should show that they are committed to finding the best way forward for donors and the UK voluntary sector, by:
- Recognising that they need to revisit the language they have used in their guidance, and so qualify their earlier announcement that opting in “is the ‘clearest’ and ‘safest’ form of consent”.
- Issuing a new statement indicating that an acceptable and legal alternative exists in the form of “legitimate interest”, which will allow charities to contact previous donors and offer them appropriate and clear choices. Continuous donor choice is just one such scheme.
- An understanding from the regulators of the principles and effects of inertia, how it affects individual behaviour and how it works in large groups of customers and donors. There is accepted evidence from behavioural scientists on this. There is also considerable evidence that past, apparently deeply lapsed, donors can reactivate themselves many years later, without ever thinking that they have stopped supporting “their” charity.
- Modelling of the likely effects of the imposition of opt in should be done, to show what its impact will be over time on donors, on charities’ regular giving income, single gift income and supporter numbers. Legacy income will also be adversely affected.
- Instead of making an arbitrary definition of consent the be-all and end-all, donors should be canvassed for their views and for what they would find acceptable and reasonable in terms of their control and participation in determining the relationship they should have with causes they have chosen to support.
- Charities should be given time and encouragement to set up a donor-focused opt-out system (such as continuous donor choice or similar) and show how it works over time, with different groups of donors. This is a real, viable and legal alternative and should be described as such. If it is not, that would seem to be a serious infringement of charities’ ability to trade.
Here my contribution to the ICO’s consultation process ends. The above points have the status of mere suggestions and requests. But I hope they’ll be just a start that stimulates additional concerted and united opposition from all in our sector to the unnecessary, unhelpful calamity for causes and donors that will be opt in.
© Ken Burnett 2017