New guidelines published by the Information Commissioner's Office allow charities to make marketing calls to individuals who have in fact registered to opt out of marketing calls using the Telephone Preference Service (TPS).

Despite one of the primary purposes of the TPS being to prevent individuals being subjected to numerous unsolicited and often irritating, not to mention unwanted marketing calls from sales people attempting to sell almost everything under the sun, the guidance provides that, where a charity deems an individual unlikely to object to such calls, the charity can make fundraising calls to those individuals despite those individuals being registered with the TPS.

The guidance provides specifically that: "Sometimes you may find that you have individuals who are already regular supporters of your charity but who are registered on the Telephone Preference Service. In these circumstances, you may choose to call those individuals if you are genuinely of the view that they will not mind receiving the marketing call. You should, however, bear in mind that such calls will technically breach the law, although no formal action will be taken if no complaints are made to the Information Commissioner."

So you can break the law by calling people, but it's ok as long as they don't complain? It depends on whether the charity considers the individual would be likely to object to such calls. Where an individual has chosen not to divulge their telephone number to the charity and has registered with the TPS, this should weigh heavily in any decision about whether or not to call.

Guidance published by the Fundraising Standard Board provides that, "In practice, a charity might judge that, given the nature of the relationship between them and the supporter, they might be able to make a marketing call to that subscriber despite TPS registration. An obvious example would be where an existing supporter has been receiving calls for some time, has never objected to those calls but has recently registered their number with the TPS."

As a matter of good practice, individuals contacted by telephone for marketing or fundraising purposes should be given an immediate opportunity to object to future contact, and should be given the opportunity to opt out of receiving marketing or fundraising calls each time they are contacted. Where an individual has told a charity expressly that they do not wish to receive further calls, the charity must deal with the request promptly and must not continue to make unsolicited telephone calls.