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Charities are constantly looking for new and innovate ways to raise funds. It started with raffle tickets, bake-offs, door-to-door appeals, fundraising events and other appeals to the public. Over the last few years, however, charities have taken their efforts online and are engaging in fundraising activities on a global scale via the Internet. It was a logical and natural progression. After all, charities, in many ways, operate much like traditional businesses in that they have targets that they would like to meet, expenses that they must cover and stakeholders to whom they must account.
International Fundraising
At present there is no coherent body of law that deals with international fundraising and there is no regulatory framework or entity that monitors or regulates internet fundraising at a global level. To determine whether Australian organisations can accept international donations; and if they can, what legal requirements Australian organisations must follow and adhere to when engaging in fundraising via the Internet (that is on a global scale), requires somewhat of theoretical analysis.
In Australia, fundraising is regulated at the state level, and there is nothing in any of the state Acts that specifically prohibits fundraisers from accepting international donations via the world wide web. Well, that takes care of the first step. Australia charities can technically accept international donations through the Internet.
As to what legal requirements Australian organisations must follow and adhere to when engaging in global fundraising via the internet will ultimately depend on whether the activities can properly be categorised as originating from and operating in a single jurisdiction or operating in several jurisdictions. Why is this relevant? It is relevant because entities are bound by the law of the jurisdictions in which they operate.
In Dow Jones & Co Inc v Gutnick [2002] HCA 56, the Court recognised that:
- the internet is a global communication network that is accessible by all those who have a means of accessing it; and
- information published via the internet cannot be said to be confined to any one particular location, jurisdiction or locality.
Accordingly, the activity of appealing for funds through a website that is accessible globally is likely to be viewed by the Australian courts as a global appeal to the public for funds. Given that all Australian jurisdictions require would-be internet fundraisers to obtain licences and adhere to certain governance standards when they are making an appeal to the Australian public for donations, it seems that any fundraising activities conducted via the fundraiser’s website would technically require the fundraiser to comply with the fundraising regulations of each Australian state. If this reasoning is applied on a global scale, it can (by necessary implication) also be argued that Australian fundraisers who conduct fundraising activities and receive donations in other countries would also need to comply with the licensing and governance requirements of each international jurisdiction.
But what about fundraisers who don’t host their website and who utilise third party fundraising and crowdfunding platforms to collect donations from domestic and international donors? Liability cannot be avoided, and compliance obligations cannot be passed over simply because a fundraiser is utilising a third party platform. The standard terms of use of such platforms would no doubt contain terms that shift the risk of compliant to users. Also, practically, whether or not donations from international sources can be collected via a third party platform will ultimately depend on the platform provider’s service offering.
Key Takeaways
If you would like more information about Australian fundraising rules and regulations or if you require assistance applying for a fundraising licence, why not contact our friendly team of LegalVision lawyers to see how we can help. We would be happy to answer any queries that you may have. Don’t delay, call us today to see how we can be of assistance.
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