UK: Out With The Old And In With The New - Moving Forward With Consent Based Fundraising Practices In The Charity Sector

Last Updated: 16 June 2017
Article by Jo Coleman, Jackie Gray, Peter Given and Amy Eames

Since media reports emerged in 2015 regarding concerns about various fundraising practices in the charities sector, the Information Commissioner's Office (ICO) has been carrying out investigations into compliance by charities with data protection law. These investigations resulted in monetary penalty notices being issued by the ICO to the RSCPA for £25,000 and the British Heart Foundation for £18,000 in December 2016, both for failing to handle donor's personal data in accordance with data protection law. More recently, the ICO has fined 11 more charities with fines of up to £18,000 for similar breaches of data protection law.

This article looks at the key insights from the conference held by the ICO, the Fundraising Regulator and the Charity Commission in February 2017 and the new guidance published from both the Fundraising Regulator and the ICO on consent.

Fundraising Regulator

The Fundraising Regulator is the independent regulator of charitable fundraising and was established in 2015. The Fundraising Regulator sets standards for fundraising practices through their codes of practice and guidance, and investigates and adjudicates on complaints.

Fundraising Regulator and ICO Conference, February 2017

To help inform charities about the requirements of data protection law and the regulators' expectations, the ICO, the Fundraising Regulator and the Charity Commission held a joint conference on 21 February (the Conference) to discuss key data protection issues relating to fundraising practices, such as implementing a consent based direct marketing model for fundraising purposes and being transparent with donors about how their personal data is used.

Whilst the ICO's investigations into this sector are now complete, a consent based model for fundraising remains top of the Fundraising Regulator's agenda and on the day of the Conference the Fundraising Regulator launched their new guidance for charities on fundraising: Personal Information and Fundraising: Consent, Purpose and Transparency Guidance (Fundraising Guidance), a checklist and a consent self-assessment tool for the charity sector.

Consent and the GDPR

Consent forms a major part of all fundraising practices and will remain a key issue in light of the General Data Protection Regulation 2016/689 (GDPR) which comes into force across Europe, including the UK, on 25 May 2018, and will replace the EU Data Protection Directive (95/46/EC) (Data Protection Directive) and the Data Protection Act 1998 (DPA). The GDPR has stricter consent and transparency requirements than under the current data protection regime. The GDPR also introduces severe sanctions for non-compliance, including fines of up to 4% of annual worldwide turnover or up to €20 million (whichever is the greater), compared to the current sanctions that could be imposed by the ICO of up to £500,000 for serious breaches of the DPA.

Since the Fundraising Guidance was issued, the ICO has now issued its GDPR Consent Guidance for consultation. The Fundraising Guidance may therefore be amended in due course to reflect the ICO's final GDPR Consent Guidance.

To assist charities to understand the issues discussed at the conference and reflected in the Fundraising Guidance, we have set out below a summary of the current law on consent and transparency and the changes which will be introduced under the GDPR.

Summary of current law on consent and transparency

  • Under the DPA, data controllers must not process personal data unless they can meet one of the lawful conditions of processing as set out in Schedule 2 of the DPA and in relation to sensitive personal data (eg information about health or political opinions), one of the conditions set out in Schedule 3 of the DPA. Obtaining the consent of individuals to the collection and processing of personal data about them is one of the lawful conditions that can be relied on for fundraising purposes, and in the case of processing sensitive personal data, explicit consent is required. In some circumstances, eg postal marketing of non-sensitive personal data, the 'legitimate interests' condition of processing can also be relied on for fundraising purposes.
  • There is no definition of "consent" in the DPA, however the Data Protection Directive which the DPA implements, defines consent as "any freely given specific and informed indication of [their] wishes by which the data subject signifies [their] agreement to personal data relating to [them] being processed." The ICO in their Direct Marketing Guidance, states that there must be some form of positive action by the individual to indicate their agreement for consent to be valid.
  • Additionally, any direct marketing for fundraising purposes sent electronically eg via email, text or automated calls will need to meet the requirements under the Privacy and Electronic Communications (EC Directive) Regulations 2003 (as amended) (PECR). This will require an individual's positive consent.
  • Data controllers must also process personal data fairly, which requires transparency to be provided, through fair processing privacy notices, as to who the data controller is, how the individuals' personal data will be used by the charity and any further information which is necessary in the circumstances to enable the processing to be fair, eg who their personal data may be shared with. The ICO has published a Code of Practice on Privacy Notices, Transparency and Control (Privacy Notices Code of Practice) which provides useful guidance on how to do this.

Summary of law on consent and transparency under the GDPR

  • Under the GDPR the consent requirements are stricter and consent must be a "freely given, specific, informed and unambiguous indication of the data subject's wishes by which he or she, by a statement or by a clear affirmative action, signifies agreement to the processing of personal data relating to him or her". The underlined sections are new requirements. The GDPR also requires that consent must be capable of being withdrawn at any time.
  • The essential elements of consent under GDPR are therefore that it is:
    • Freely given: Individuals must have a genuine and free choice as to whether to give consent and must be able to refuse or withdraw their consent without detriment. The ICO in its draft GDPR Consent Guidance suggests that organisations should therefore ensure consent is not bundled up with terms and conditions for a service.
    • Specific and informed: An individual should be told who the data controller is and the purposes for which their personal data is being processed. Where the data controller is carrying out the processing for multiple purposes, the individual should give specific consent for each purpose. This requires a granular approach to obtaining consents.
    • Clear affirmative action: This could be by a written or oral statement, including the individual ticking a box. However the GDPR and the ICO's draft GDPR Consent Guidance make it clear that silence, pre-ticked boxes or inactivity eg failure to opt out will not be a valid form of consent.
  • Evidence must also be kept by the data controller under the GDPR to demonstrate that the consents were given. The ICO draft Consent GDPR Guidance suggests that data controllers will therefore need to keep records of who consented, when they consented eg a copy of a dated document, what the individual was told at the time, how the consents were obtained and, if the consent has been withdrawn and when.
  • The transparency requirements under the GDPR are also stricter than under the DPA. In particular the GPDR requires data controllers to provide more information in privacy notices where personal data is collected from the individual. There are also requirements to provide more transparency where personal data has not been provided by the individual, eg where the data controller has obtained the information from third parties or from publicly available sources. In both cases, the data controller will need to tell individuals the legal basis for processing their personal data. The ICO's Privacy Notices Code of Practice has more information about what must be contained in privacy notices, including a helpful checklist.

The Fundraising Regulator's Recommendations

The Fundraising Regulator in its Fundraising Guidance sets out a number of recommendations to ensure a charity's fundraising direct marketing activities comply with data protection law now and under the GDPR.

  • Charities will need to have a clear understanding of the legal basis' on which they collect personal data for direct marketing purposes eg via consent or another lawful condition of processing, such as for the purpose of pursuing a legitimate interest. In each case this will also need to meet the requirements of PECR in relation to telephone and electronic marketing.
  • Where consent is relied on, the Fundraising Regulator recommends:
    • charities implement a 'GDPR-standard' of consent. It is the Fundraising Regulator's view that the GDPR and ICO's guidance all suggest that an express opt-in is the clearest, and most future-proof way of demonstrating consent. The ICO's draft GDPR Consent Guidance confirms this position and also states that historic consents will also need to comply with the consent requirements of the GDPR. In some cases this may require consents to be re-obtained to ensure compliance.
    • charities to keep a record of the consents they have obtained to show that the individual has given their unambiguous agreement to their personal data being used for each direct marketing purpose, and by the relevant medium used. This is also recommended in the ICO's draft GDPR Consent Guidance.
  • Direct marketing communications should also include a mechanism for the individual to easily withdraw consent at any time.
  • Charities should review their existing fair processing notices and privacy policies to ensure they meet the ICO's Privacy Notices Code of Practice.
  • Charities should also maintain a record of the fair processing notices and privacy policies they use, including when they were in operation, for which medium, and record any changes and who they were signed off by.

What were the key insights from the Conference?

There are a number of insights from the Fundraising Regulator and the Information Commissioner which were drawn out in the Conference:

  • Fairness: A key theme of the Information Commissioner's speech was about fairness. Under the DPA and the GDPR, it is a requirement that personal data is processed fairly, lawfully and transparently. In particular, charities will need to tell individuals' the purpose(s) for which their personal data is being collected and used. In relation to the following fundraising practices, the Information Commissioner had the following views:
    • Wealth screening: This is the practice whereby charities use a third party to profile their donors based on their wealth for fundraising purposes and also for legacy profiling, eg. those donors who leave donations in their wills. From what the ICO has seen from their investigations into wealth screening "it is not the activity which is against the law but failing to properly and clearly tell your donors that you are going to do it is". The Information Commissioner explained that if individuals did not know wealth-screening was being undertaken, this would be unfair as they were therefore unable to consent to such screening or object
    • Publicly available information: Many of those attending the Conference seemed surprised that there were also requirements to be transparent about processing personal data where it was obtained from public sources. This was a key point made by the Information Commissioner who said that the principle of "fairness applies whether the information is given to you directly by an individual or obtained from other, publically available source.... Once you've collected it, once it's in your hands, you are obliged to treat it fairly and in line with the Data Protection Act. That means being transparent and telling people what you're going to use it for, who you will be sharing it with."
    • Data-matching / tele-appending: Data-matching is the practice whereby charities use third parties to update their donor's contact information and find missing information not initially provided by the donor and use it for their purposes. Similarly, tele-appending uses the donor's telephone number to obtain other personal information about that donor. The Information Commissioner explained that, "Fairness also means that personal information should only be used in a way that people would reasonably expect". A donor would not expect a charity to obtain their phone number from another source, if the donor had not specifically provided their phone number in the first place. The Fundraising Guidance states that informed consent should be obtained to be able to carry out data-matching / tele-appending.
  • Fundraising Preference Service (FPS): This is due to be launched by the Fundraising Regulator in the summer. The FPS would allow all members of the public in England and Wales to opt-out of any or all direct marketing (eg email, test, telephone and postal mail) from a specific charity. However it is not clear whether it will be mandatory for charities to sign up to be listed on the FPS.

What charities should be doing now

Many organisations including those in the charity sector are taking steps now to ensure compliance with the GDPR, including looking at consent requirements in relation to fundraising. This includes a number of charities who have undertaken a consent review and whose compliance journeys have been included in case studies published by the Fundraising Regulator alongside their new Guidance.

Charities will need to review their activities where consent is relied upon and carry out a gap analysis against the Fundraising Guidance and the draft ICO consent guidance, and implement (if required) the necessary remediation to ensure compliance with the GDPR standard of consent for when it comes into force.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

In association with
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:
  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.
  • Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.
    If you do not want us to provide your name and email address you may opt out by clicking here
    If you do not wish to receive any future announcements of products and services offered by Mondaq you may opt out by clicking here

    Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

    Use of

    You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


    Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

    The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


    Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

    • To allow you to personalize the Mondaq websites you are visiting.
    • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
    • To produce demographic feedback for our information providers who provide information free for your use.

    Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

    Information Collection and Use

    We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

    We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

    Mondaq News Alerts

    In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


    A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

    Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

    Log Files

    We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


    This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

    Surveys & Contests

    From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


    If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


    From time to time Mondaq may send you emails promoting Mondaq services including new services. You may opt out of receiving such emails by clicking below.

    *** If you do not wish to receive any future announcements of services offered by Mondaq you may opt out by clicking here .


    This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

    Correcting/Updating Personal Information

    If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

    Notification of Changes

    If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

    How to contact Mondaq

    You can contact us with comments or queries at

    If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.

    By clicking Register you state you have read and agree to our Terms and Conditions