On the case - July 2008
When does a “special relationship” override privacy rules?
All marketers like to think that they have a close relationship with their customers and believe that their communications are welcomed. Whether the customers feel the same about the relationship is, of course a moot point.
Sometimes the relationship has a level of empathy which leads the organisation controlling the data to believe that it can, quite literally, take liberties with personal details. Classic cases here are not-for-profits, and educational institutions running alumni programmes. Because the processing is “cause related” many such organisations think that they can use data freely relying on the special relationship they have with supporters and ex-students.
Sadly, they are mistaken and, whilst there are some narrow exemptions for non profit organisations in many of the national data protection laws, the need to get the consent of individuals for processing still applies – in fact in the UK the rules are tougher for charitable causes than they are for commercial organisations.
All organisations are able to use data to fulfil contracts with their customers or supporters – and that includes processing donations – but the problem arises when the data is used subsequently for other things. For many years, charities have exchanged donor lists, mostly without the permission of their supporters to do so; whilst levels of complaint may be relatively low these disclosures still break the law.
Now that more aggressively sold “affinity” deals between non-profits and commercial organisations have become common there is a real risk that complaint levels will rise. This, in turn, could lead to enforcement action against charities and, possibly, their commercial partners.
Alumni programmes are even more tricky. The use of student’s information whilst they are attending an institution is legitimate for communications related to their course work (although one Professor in the UK was recently berated for giving a concerned mother information about her son’s academic performance) but can the alma mater assume that graduate students will want to receive fundraising promotions? Of course the US models on which many of these programmes are based do not have to take account of consent issues but in the data protected world, alumni have the right to say “no”.
With increased sophistication in non-profit marketing, data protection issues and particularly the need to gain and record permissions are becoming a headache. Former relationships, no matter how “special” are no excuse for ignoring privacy rights.
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