Donor Lists & Respecting Privacy

Authored by Derek B.M. Ross.

From time to time, CCCC is made aware of attempts by charities to exchange donor lists. Recently CCCC received a number of emails containing such a request.

Requests such as these are not uncommon. Sometimes they come from complete strangers, but in other cases, they may originate from organizations that are familiar to you and even share your charity’s values and goals.

No matter where the request comes from, charities should be aware of their obligations under the law, including PIPEDA, Canada’s federal privacy legislation.[1] Although many of a charity`s activities, such as collecting membership fees, compiling a list of members’ names, and fundraising are considered not to be strictly subject to PIPEDA[2], the legislation does specifically apply to the “selling, bartering or leasing of donor, membership or other fundraising lists”.[3] As a result, charities must obtain consent from a donor before “selling, bartering, or leasing” their information to another organization (which we fully expect would include an exchange for consideration, such as access to another charity’s list of donors).

Further, Canada’s anti-spam legislation (“CASL”) prohibits organizations, including charities, from sending commercial electronic messages without the recipient’s express or implied consent (unless an exemption applies).[4] Charities therefore may not be permitted to send certain messages to contacts from another organizations’ donor list, unless the sending charity has itself obtained consent from each recipient, or an exemption applies.

In addition, many (if not all) fundraising codes of ethics provide that charities will not exchange, rent, or share their donors’ information with other organizations.

Legal obligations aside, charities should consider how their donors might feel if their personal information were disclosed without their consent. Some might have a sense of betrayal or anger; others might feel taken advantage of. Any gain your charity might experience as a result of a new list of prospective donors could be outweighed by the damage to your existing donor base (and many of the “new” donors you will be contacting could be just as unhappy).

While charities should always be willing to work with other organizations and share ideas, experiences, and best practices, they should never disclose donor information without their consent.

Should charities ever share donor lists, even with consent? Ultimately, each charity will have to decide for itself how it wants to approach this issue. For those charities that wish to share donor lists with other organizations, they should at minimum (i) clearly communicate to their donors what their policy is on information-sharing; (ii) ensure they have their donors’ express consent before sharing any of their personal information; and (iii) verify that the other organization also has their donors’ consent to share their information as well. In addition, charities will need to ensure their communications with any new contacts are in compliance with CASL.

However, it should be noted that most individuals will be less inclined to donate to organizations that trade or barter their personal information. For this reason, many charities have implemented policies and adhere to fundraising codes that prohibit the sharing of donor lists. CCCC has a sample Ethical Fundraising and Financial Accountability Code and sample Privacy Policies for charities to consider adopting (member password required).

References

[1] Personal Information Protection and Electronic Documents Act, S.C. 2000, c. 5. [“PIPEDA”].

[2] See Office of the Privacy Commissioner of Canada, Fact Sheet: “The Application of the Personal Information Protection and Electronic Documents Act to Charitable and Non-Profit Organizations” (modified April 1, 2004).

[3] PIPEDA, s. 2(1) (definition of “commercial activity). Although PIPEDA does not apply in provinces which have adopted their own “substantially similar” privacy legislation (as in Alberta, British Columbia, and Quebec), those provinces also have certain consent requirements.

[4] See s. 6 of the legislation as well as the CRTC’s FAQs on CASL. For more information about the application of CASL specifically to charities, including a discussion of the relevant exemption for certain fundraising messages, see CCCC’s resources (member password required) Complying With The New Anti-spam Law: A How To Guide for Charities and CASL for Charities: An Update

Noteworthy is provided for general information purposes and does not constitute legal or professional advice. Every organization’s circumstances are unique. Before acting on the basis of information contained in this blog, readers should consult with a qualified lawyer for advice specific to their situation.