Code changes

KEY: * denotes legal requirement

 MARCH 2016

As of March 2016, the following addition was made to the Code.

6.5 Selling/renting and sharing marketing lists

b) Even if not for payment, organisations MUST NOT share the personal data of an individual with any other organisation for that organisation’s marketing or fundraising purposes without the explicit consent of that individual to the sharing of the personal data with that other organisation or other specified types of organisation.

This paragraph does not apply to the sharing of personal data between organisations which are within a federated structure and/or where one controls the other or both are under common control.  Subparagraph 6.5 b) does not apply where the personal data are being shared with a data processor (organisations that are, under written contract, acting on behalf of another organisation e.g. professional fundraisers, data cleansers, printing houses etc.) and where the requirements with regard to data processing under the Data Protection Act 1998 (including the written contract setting requirements as to security) are also met

“Explicit consent” under subparagraph 6.5 b) means that an individual must have provided a positive indication that they agree to their personal data being shared. This could take the form of ticking an opt-in box, or another action that signifies agreement, such as oral confirmation, or the provision of contact details where the individual has been clearly informed that by giving these details they agree to their data being shared.

For further information on the legal requirements relating to data protection please see the legal appendix on Data Protection and the guidance available from the Information Commissioner’s Office.

 

December 2015 

As of December 2015, the following additions were made to the Code. You can see the answers to some frequently asked questions here. Do you have a question about Code updates? Ask our policy team on the online member forum.

5.2 Fundraising Communications and Techniques

Addition at 5.2 (o)

o) All permission statements (opt-in or opt-out wording to gain consent for marketing purposes) displayed in fundraising materials MUST be at least the same font size as the larger of (i) any text asking for the recipient’s personal details, or (ii) any text specifying the donation amount. If there is no text asking for personal details or specifying donation amount, any permission statements MUST be in the minimum font size of 10. 

6.6 Direct Marketing

Addition at 6.6 (a)

a) Organisations MUST include on all fundraising communications sent to a named individual, clearly displayed details of how the recipient can, by a single step, opt-out of receiving such communications from the charity on whose behalf the communication was sent. This MUST be at least the same font size as the larger of (i) any text asking for the recipients personal details, or (ii) any text specifying the donation amount. If there is no text asking for personal details or specifying donation amount, this information MUST be in the minimum font size of 10.

 

November 2015

As of November 2015, the following amendments and additions were made to the Code. You can see some more background information of the new requirements in this document. 

5.2 Fundraising Communications and Techniques

Amendment to 5.2 (a)

(a) Data protection is an important issue for all fundraisers. Fundraising organisations MUST*comply with all legal requirements relating to data protection.In addition, organisations MUST keep up to date with and have regard to relevant guidance from the Information Commissioner.

This replaces the previous Code requirement of 5.2 (a)

(a) Data protection is an important issue for all fundraisers. Fundraising organisations MUST*comply with all legal requirements relating to data protection.

6.5 Direct Marketing

New Code requirement introduced at 6.5 (a)

(a) Organisations MUST NOT share personal data for payment with any other organisation for that organisation’s marketing or fundraising purposes*.

 *6.5 (a) does not apply to the sharing of personal data between organisations which are within a federated structure and/or where one controls the other or both are under common control.

 

1.2 Key Principles

New Code requirement at 1.2 (f)

(f) Organisations MUST NOT engage in fundraising which:

Is an unreasonable intrusion on a person’s privacy;

Is unreasonably persistent;

Or

-  Places undue pressure on a person to donate.

Removal of 1.3.1 b) - Key Principles

Fundraisers MUST NOT pressurise donors or potential donors, but may use reasonable persuasion.

 

8.3.1 Telephone Fundraising

New Code requirement  8.3.1 (l)

(l) Fundraisers MUST NOT, at any point in a telephone call, be unreasonably persistent or place undue pressure on the recipient to donate, and MUST NOT ask for a donation more than three times during that call.

 

8.2.3 Telephone Fundraising

New Code requirement at 8.2.3 (d)

(d) Telephone fundraising agencies carrying out fundraising calls on behalf of a charity MUST have an up to date TPS Assured certification or be in the process of applying.

 

8.3.1 Telephone Fundraising

New Code requirement at  to 8.3.1 (m)

(m) Fundraisers MUST NOT continue a call if, at any point during the call, the recipient gives a clear indication they do not want the call to continue.

 

8.2.5 Telephone Fundraising

New Code requirement at 8.2.5 (a)

(a) Fundraising agencies MUST make every fundraising call using a telephone number which can be identified by the recipient and to which the recipient can return the call.

Charities, wherever possible, MUST make every fundraising call using a telephone number which can be identified by the recipient and to which the recipient can return the call.

 

4.2 Working with Third Parties

Amendment to 4.2 (b)

(b) Organisations MUST check, and make all reasonable efforts to ensure, the on-going compliance of third parties with the Code and their legal requirements.

This replaces the previous wording of 4.2 (b) 

(b) Organisations MUST make reasonable efforts to check and ensure the on-going compliance of third parties with the Code and their legal requirements.

 

4.2 Working with Third Parties

Amendment to 4.2 (d)

(d) Before soliciting money or other property a “professional fundraiser” MUST* have a written agreement in place with the Client, and each time a “professional fundraiser” solicits money or other property, they MUST* make a disclosure (or solicitation) statement.

This replaces the previous wording of 4.2 (d)

(d) Before soliciting donations a “professional fundraiser” MUST* have a written agreement in place with the Client, and each time a “professional fundraiser” solicits donations, they MUST* make a disclosure (or solicitation) statement.

 

Legal Appendix 10 – Solicitation Statements

Amendments to Section L.10 (d)

(d) Professional fundraisers MUST* make a solicitation statement every time they solicit money or other property on behalf of a charity or an institution which is established for benevolent or philanthropic purposes. This is the case even if the money is not a pure donation but is given in return for something. (Section 58 (6) (b) Charities Act 1992).

In the case of telephone fundraising, the appropriate statement MUST* be made during each call and within seven days of any payment of £100 or more being made by the donor to the professional fundraiser, the professional fundraiser must give the donor a written statement, and notify the donor of their right to a refund/cancel. (Section 60 (5) Charities Act 1992.)

This replaces the previous wording at L.10 (d)

d) Professional fundraisers MUST* make a solicitation statement every time they solicit donations on behalf of a charity or an institution which is established for benevolent or philanthropic purposes.

In the case of telephone fundraising, the appropriate statement MUST* be made during each call and a written statement must be sent within seven days of any payment being made by the donor to the professional fundraiser.

 

Legal Appendix 14 – Data Protection

Amendments made to Legal Appendix on Data Protection – L.14

A number of amendments have been made to the legal appendix on Data Protection so that fundraisers are clearer on the requirements of the Data Protection Act and Privacy and Electronic Communications Regulations.

It is recommended that all members review Legal Appendix 14 to ensure that they are aware of all relevant requirements of the legislation.

 

September 2015

As of September 2015, the following additions were made to the Code:

16.10 Conduct of Collections

(s) Fundraisers MUST NOT knock on any door of a property that displays a sticker or sign which includes the words ‘No Cold Calling’.

 

August 2015

As of August 2015, the following amendments were made to the Code:

8.2.3 The Telephone Preference Service

The Telephone Preference Service (TPS) and Corporate Telephone Preference Service (CTPS) allows individuals or companies to register their telephone numbers to indicate that they do not wish to receive unsolicited sales and marketing telephone calls.

a) Organisations MUST* always check telephone numbers against TPS/CTPS before making calls.

b) Organisations MUST NOT* make direct marketing calls to Telephone Preference Service (TPS)/Corporate TPS (CTPS)-registered numbers unless the person who registered the number has notified the organisation that they are happy to receive calls for the time being.

The Information Commissioner’s Office has produced guidance on direct marketing including the definition of ‘consent’ and the key points for consent to be valid.  

Administrative calls differ from marketing calls in that they are not made with the specific purpose of soliciting a donation/sale, and so are outside of the Regulations.

c) Marketing calls under the guise of administrative calls MUST NOT* be made.

 

The Code at 8.2.3 previously read:

8.2.3 The Telephone Preference Service

The Telephone Preference Service (TPS) and Corporate Telephone Preference Service (CTPS) allows individuals or companies to register their telephone numbers to indicate that they do not wish to receive unsolicited sales and marketing telephone calls.

a) Organisations MUST* always check telephone numbers against TPS/CTPS when intending to call cold donors.

b) Organisations MUST NOT* make direct marketing calls to Telephone Preference Service (TPS)/Corporate TPS (CTPS)-registered numbers unless the person who registered the number has notified[1] the organisation that they are happy to receive calls for the time being.

[1] - Organisations may make the judgement that their relationship with a donor is such that they do not need to seek further consent to receiving calls. The Information Commissioner's Office (ICO) urges a cautious approach. 

Whilst the law is clear that calls should not be made to anyone registered with the TPS unless they have specifically informed the caller that for the time being they do not object, the ICO has produced guidance to explain there are circumstances where they are less likely to take formal action.

Administrative calls differ from marketing calls in that they are not made with the specific purpose of soliciting a donation/sale, and so are outside of the Regulations.

c) Marketing calls under the guise of administrative calls MUST NOT be made but supporters’ marketing preferences can be verified during a genuine administrative call.

 

July 2015

As of July 2015, the following additions were made to the Code:

Code number 1.2 (e):

iii) “If a fundraiser knows or has reasonable grounds for believing that an individual lacks capacity to make a decision to donate, a donation MUST NOT be taken.”

iv) “A donation given by someone who lacked capacity at the time of donating MUST* be returned.”

Code number 4.2:

c) Organisations MUST require that any agency or third party that they work with complies with the requirements of the Data Protection Act 1998 and the Privacy and Electronic Communications (EC Directive) Regulations 2003 as set out in the Code, including the requirements of the Telephone Preference Service, regardless of the country or legal jurisdiction in which the agency is based or operating. In some circumstances this is a legal requirement for charities, but in other circumstances it may not be. Please see the guidance at L14.9 for further details.

 

December 2014

As of December 2014, the following addition was made to the Code:

Code number 1.2 (e):

i) Fundraisers MUST take all reasonable steps to treat a donor fairly, enabling them to make an informed decision about any donation. This MUST include taking into account the needs of any potential donor who may be in a vulnerable circumstance or require additional care and support to make an informed decision.

ii) Fundraisers MUST NOT exploit the credulity, lack of knowledge, apparent need for care and support or vulnerable circumstance of any donor at any point in time.

Previous sections of the Code of Fundraising Practice related to vulnerability were:

Code number 5.2 (o):

i) Where known, organisations MUST communicate appropriately with vulnerable people, who could include, but are not limited to: service users and client groups; and people with learning difficulties and/or disabilities.’

and Code number 16.10 (n):

ii) Collectors MUST NOT approach individuals that may reasonably be considered to be vulnerable adults.

These sections have now been removed.

 

October 2014

As of October 2014, the following addition was made to the Code:

Code number 9.3.3:

b) Organisations MUST* comply with all relevant consumer law, distance selling and digital commerce legislation

f) Organisations MUST* comply with legal requirements as to delivery, cancellation, refunds and returns and MUST have policies that set out processes and timings for potential customers.

The Code at 9.3.3 previously read that:

b) “Organisations MUST* comply with the Consumer Protection (Distance Selling) Regulations 2000 (as amended) which cover sale of goods and services via the internet, and the Electronic Commerce (EC Directive) Regulations 2002 and the Provision of Services Regulations 2009, which govern the conduct of digital commerce in the UK.”

f) “Organisations MUST ensure that they have clear delivery, refund and return policies that set out processes and timings for potential customers.”

 

March 2014

As of March 2014, the following addition was made to the Code:

Code number 9.6.2:

a) Organisations using Premium SMS MUST* register with PhonePayPlus and comply with its Code of Practice unless providing exempt services (as defined in the PhonePayPlus Code).

 

September 2013

As of September 2013, the following addition (in italics) was made to the Code:

Code number 17.4

a) The collector MUST* obtain written permission of site holders to collect on the premises. This permission OUGHT to be in writing.

 

August 2013

As of August 2013, the following additions and amendments were made to the Code: 

Code number 4.2.b:

Added: “Organisations MUST make reasonable efforts to check and ensure the on-going compliance of third parties with the Code and their legal requirements.” 

Code number L7.4:

Added: "“Where a donation has been accepted but the conditions later prove to be inappropriate or unworkable, the charity may be able to apply to OSCR to reorganise the restricted fund created by the donation.  However, this will only be possible where the charity is unable to ascertain the wishes of the donor.  A number of other conditions MUST also be met (see paragraph 18.4.2 above). " 

Code number 1.5:

Previously: “In certain instances, it may not be possible to use the monies raised for a particular gift for its intended purpose. The law in relation to changing the terms of a gift is complex and organisations should obtain advice from legal advisers or the Charity Commission/Office of the Scottish Charity Regulator (OSCR) before seeking to change the terms, even if there is donor consent.” 

Amended to read: “The law in relation to changing the terms of a gift is complex and organisations should obtain advice from legal advisers or the Charity Commission/Office of the Scottish Charity Regulator (OSCR) before seeking to change the terms, even if there is donor consent.  In Scotland, in cases where donor consent cannot be obtained, OSCR can permit the restricted fund under which a gift is held to be ‘reorganised’ if certain conditions are met, but only where it is not possible to ascertain the donor’s wishes in relation to the proposed change.” 

Code number 18.4.2:

Added: “In Scotland, if a legacy or gift is given for a specific purpose but the purpose has been fulfilled or otherwise provided for, can no longer be given effect to, has ceased to be charitable, has ceased to be a suitable and effective use of the funds or does not provide a use for all of the funds, organisations MUST consider applying to OSCR to reorganise the restricted fund in order to allow the restricted fund to be used to better effect in a way that is consistent with the charity’s constitution.  However, a charity MUST NOT* use restricted funds for a different purpose unless OSCR grants such a reorganisation application.” 

Code number 1.3.3.b:

Previously: "Fundraisers MUST be aware of when benefits nullify potential tax reliefs such as Gift Aid. If benefits do prevent Gift Aid organisations MUST NOT* make a Gift Aid claim."

Amended to read: "“Fundraisers MUST be aware of when benefits nullify potential tax reliefs such as Gift Aid or top-up payments available under the small donation rules. If benefits do prevent the donation qualifying under Gift Aid or the small donation rules, organisations MUST NOT* attempt to reclaim tax on the sum.” 

Code Number 1.4.b:

Added: “Fundraising organisations MUST* only make a Gift Aid reclaim in respect of a donation if all of the Gift Aid conditions are met.  One of these is that a donor’s Gift Aid declaration MUST* comply with the new guidance issued by HMRC setting out the information that declarations are required to include from 1st January 2013.  Where a donation is not eligible for Gift Aid and the organisation wishes to make a claim under the small donations rules, it MUST* only do so if all of the small donation conditions are satisfied.” 

Code Number L12.4:

• Paragraph (a) previously: “Charities that are so registered MUST* comply with the Charities References in Documents (Scotland) Regulations 2007 and make certain statements about their status in their documents."  

• Paragraph (a) amended to read: “Charities that are so registered MUST* comply with the Charities References in Documents (Scotland) Regulations 2007 and make certain statements about their status in their documents.  Scottish Charitable Incorporated Organisations (SCIOs) are subject to slightly different rules but MUST* comply with section 52 of the Charities and Trustee Investment (Scotland) Act 2005 and the Scottish Charitable Incorporated Organisations Regulations 2011 in relation to the statements that they make.”

• Paragraph (b) previously: “Under the Charities References in Documents (Scotland) Regulations 2007, charities entered on the Scottish Charity Register MUST* specify the following in their documents...”

• Paragraph (b) amended to read: “Under the Charities References in Documents (Scotland) Regulations 2007, charities entered on the Scottish Charity Register (other than SCIOs) MUST* specify the following in their documents...”

• The following inserted as a new paragraph (d): “Where a charity takes the form of a SCIO, the information it MUST* state is its full name and, if its name does not include reference to its legal form, the fact that it is a SCIO.  As a matter of good practice, it MUST state its charity number and, when disclosing its SCIO status, state that it is a Scottish Charitable Incorporated Organisation rather than using the acronym SCIO.”

• Paragraph (d) (now re-lettered) previously: “This information MUST* be stated in all...”

• Paragraph (e) as re-lettered amended to read: “In the case of both SCIOs and any other type of charity, this information MUST* be stated in all...” 

• Paragraph (e) (now re-lettered) previously: “The rules apply to documents which are issued or signed by others on a charity’s behalf as well as by the charity itself. All charities registered in Scotland MUST* comply, regardless of size or income, although new charities are given an initial six month ‘grace’ period.”

• Paragraph (f) as re-lettered amended to read: “The rules apply to documents which are issued or signed by others on a charity’s behalf as well as by the charity itself. All charities registered in Scotland MUST* comply, regardless of size or income, although new charities (other than SCIOs) are given an initial six month ‘grace’ period.”

Sections of the Code: Fundraising Communications and Techniques

New Code requirement introduced at 5.2 (o):

o) All permission statements (opt-in or opt-out wording to gain consent for marketing purposes) displayed in fundraising materials MUST be at least the same font size as the larger of (i) any text asking for the recipient’s personal details, or (ii) any text specifying the donation amount. If there is no text asking for personal details or specifying donation amount, any permission statements MUST be in the minimum font size of 10.

Section of the Code: Direct Marketing

New Code requirement introduced at 6.6 (a):

a) Organisations MUST include on all fundraising communications sent to a named individual, clearly displayed details of how the recipient can, by a single step, opt-out of receiving such communications from the charity on whose behalf the communication was sent. This MUST be at least the same font size as the larger of (i) any text asking for the recipient’s personal details, or (ii) any text specifying the donation amount. If there is no text asking for personal details or specifying donation amount, this information MUST be in the minimum font size of 10.

Section of the Code: Direct Marketing

New Code requirement introduced at 6.6 (a): 

a) Organisations MUST include on all fundraising communications sent to a named individual, clearly displayed details of how the recipient can, by a single step, opt-out of receiving such communications from the charity on whose behalf the communication was sent. This MUST be at least the same font size as the larger of (i) any text asking for the recipient’s personal details, or (ii) any text specifying the donation amount. If there is no text asking for personal details or specifying donation amount, this information MUST be in the minimum font size of 10.