Patrick Gibbels: Why ePrivacy proposals could give the sector an even bigger headache

ePrivacy rules are on the table to be overhauled, but the latest proposed amendments could be even more problematic for nonprofit fundraising. Our columnist Patrick Gibbels explains why.

The proposed EU ePrivacy laws have changed shape once more and this could have major consequences for fundraising across Europe, particularly when it comes to telephone campaigns.

The ePrivacy Regulation will of course replace the current Directive and it’s likely that the new rules will introduce even stricter rules for organisations’ use of data.

When speaking to Brussels decision-makers, the ePrivacy file often gets dubbed “everyone’s headache”. There seems to be a general fatigue within the European institutions to resolve the issue of ePrivacy. After four years lying dormant, due to the inability of Member States to align on its contents, the Council EU (of Member States) has tabled several compromise papers in an attempt to find balance. A new compromise paper has now been drafted and it does not look good for nonprofits.

The proposal is to delete article 16.4. While this article establishes the need to obtain user consent for direct marketing communication, it also provides Member States with flexibility to decide how the rules apply to telemarketing in their respective territories. In other words, with that article in place, Member States would have the freedom to decide whether this happens via an opt-out, or an opt-in regime. The deletion of the article would take away this right from Member States and impose a one-size-fits-all opt-in regime at EU level for telephone marketing. This would inevitably negatively impact all markets currently using an opt-out system and where telephone outreach is relied upon for fundraising.

This adds to previous concerns we’ve already raised here about other proposed amendments to the regulation. This includes concerns about the proposal for organisations that engage in telephone marketing to be assigned a certain label and a special telephone prefix. Telecom providers would then be able to offer users the facility to automatically block all incoming calls from such numbers, irrespective as to whether it is a charity known to the supporter or a cold sales call.

In other words, this would bypass donors’ explicit consent to be contacted. If a donor who had consented to be contacted activates the prefix block, all fundraising calls could be blocked by default. Needless to say, this could severely affect organisations’ ability to raise funds.

The combination of requiring an opt-in by default as well as the risk of a blanket block on these potential mandatory prefixes could cause a significant blow to nonprofits. A coalition of cross-sectoral stakeholders has been formed to object against these proposed amendments. EFA is in close contact with members of this coalition to share information and insights from the fundraising sector, coordinating our actions. EFA is in the process of drafting a letter to the institutions, outlining its concerns, and will report back on future progress.

Patrick Gibbels, Gibbels Public Affairs

About Patrick Gibbels

Patrick is EFA’s public affairs columnist in Brussels.

He is the director of Gibbels Public Affairs.

Follow Patrick @GPA_Brussels.

Read more from Patrick in our View from Brussels column here.

Main feature photo (lock) by ShonEjai from Pixabay