Is asking customers to donate from cancelled performances due to COVID-19 GDPR compliant?

Now that the initial impact of COVID19 on the Arts sector is starting to become apparent, we’re all trying to find ways of re-couping income and harnessing audience support.

One of the ways many ticketed organisations have been responding is by asking customers to donate the value of their cancelled performance tickets to the organisation. Utterly reasonable in the light of the current situation, one would assume.

But how does this sit with previous advice on GDPR from the Fundraising Regulator, ICO and Arts Council?

When asking ticket bookers for donations, we’ve previously operated under the understanding that we need consent from people in order to fundraise from them. And to complicate things further, in most organisations, the consent to fundraise is often gathered and recorded separately from consent or legitimate interest to send them direct marketing about forthcoming productions.

Given that most arts organisations have (on average) permission to send direct marketing to around 40% of their bookers, and fundraising asks to less than 10% of bookers, applying this would vastly reduce the amount of potential income raised at such a difficult time.

However, when cancelling a performance, you are legally allowed to contact customers using any contact details you have for them, regardless of whether they have otherwise opted to receive direct marketing from you. This is done under the legal basis: performance of a contract. This is because the customer has a contract with you to deliver a service (a performance) and if you need to terminate that contract you need to communicate that to them. This is often called ‘service messaging’ and is supposed to be free of any marketing or fundraising messages at all.

So, given how we were previously operating, how on earth could we use the performance of a contract legal basis when sending essentially a ‘service message’ to ask people for donations?

Here’s my thinking

(but it’s not legal advice of course….!)

• The organisation has a contract to supply the performance to the ticket buyer.
• In order to terminate this contract the organisation has to write to/email/call the ticket buyer to terminate the contract with them.
• If as part of terminating the contract, the customer is given choices as to how they want their refund to be processed, I would argue that

1. The customer would reasonably expect a charity to do that

2. It is part of the contract termination process

My caveats

I think this argument can easily be made when the ask is made as part of the refund process, using tools such as the recently released Ticket Converter Tool from Spektrix or the Ticket Exchange Tool from Ticketsolve.

You need to be very careful in the messaging used in the cancellation email that is sent. I would suggest using wording that informs customers that they will be ‘given the option’ to donate, rather than ‘asking’ them directly to donate.

There should be ‘default’ position of a refund being made if a customer does not respond within a stated timeframe.

When I think it’s dodgy…

A less preferable approach, which I have seen many organisations adopting this week, would be for the cancellation email to ask directly for donations with a large ‘donate here’ button or link.

In most of these cases bookers have been told that refunds will be processed later. Not only is this confusing for customers, I think it’s less likely to pass the test for GDPR AND is probably likely to raise less money overall.

I also think the approach taken where refunds are not processed UNLESS customers request them, assuming that if they don’t the ticket value can be claimed by the organisation as a donation, is also highly questionable, not only from a GDPR but also a fundraising code of practice point of view.

And finally

Whatever you decide to do, document the decisions you’ve taken:

What evidence do you have that this would be ‘reasonably’ expected by your ticket buyers? I would argue 2 things:

• Context around COVID-19
• Customer requests (I know many organisations where customers have asked to do this)

This is a guest blog by Katy Raines, co-founder and partner at Indigo Ltd. Katy is an expert in CRM and segmentation in the arts and works across the UK and Europe. She is an Associate of thrive and has worked with us on GDPR support for the sector and on the North West Audience Development Project.