Fundraising the YouTube Way

In 2014, YouTube introduced a payment system that lets YouTube viewers send donations to their favourite YouTube personalities, on top of the revenue they already receive through advertising. Recently, YouTube has taken this one step further by allowing YouTube content providers in the United States to add donation cards to their videos. This allows US viewers to send funds to the charities that the content provider supports. There are plans to open this feature up to more countries “so creators across the world can power nonprofits they care about.” But would this work in Australia? 

 The Charitable Fundraising Act 1991 is the New South Wales legislation which broadly regulates how charities must conduct their fundraising appeals. There is comparable legislation in every other state and territory (other than the Northern Territory).

Could this legislation affect the well-meaning efforts of YouTube content providers?

The YouTube content provider or uploader, by adding a donation card, is asking viewers to make a gift to the named charity. The legislation considers this to be a fundraising appeal.

Who is conducting the fundraising appeal? Under the legislation, a person conducts a fundraising appeal if the person organises the appeal, whether alone or with others, whether in person or by an agent or employee and whether on the person’s own behalf or as an officer or member of the governing body of an organisation. YouTube uploaders arrange for the donation card to be there and so organise the appeal. They probably do so alone and in person. Accordingly, it is arguable that a YouTube uploader does conduct a fundraising appeal.

It is an offence to conduct a fundraising appeal unless you are:

1. the holder of an authority authorising you to conduct the appeal; or
2. a member of an organisation or an employee or agent of an organisation that holds such an authority and you are authorised by that organisation to conduct the appeal; or
3. authorised to conduct the appeal without an authority.

It is unlikely that YouTube uploaders placing donation cards on their videos would hold an authority to fundraise. It is also unlikely that they would be members, employees or agents of their favoured charity. They are often simply concerned with fundraising for a worthy cause.

However, it seems to us that it would be relatively simple for the YouTube uploaders to contact their chosen charity to find out if it has an authority to fundraise. All reputable charities hold an authority or are exempt (for example, a religious organisation). Then, the YouTube uploaders could ask the charity to authorise them as agents to add the donation cards to their video. Subject to some due diligence by the charity, we imagine that many would be delighted to benefit in this way.

The charitable fundraising legislation in Australia was drafted some 25 years ago. YouTube was not contemplated! The introduction into Australia of this technology may require legislative amendment.

In the meantime, both video creators and charities should keep an eye on the progress of this technology in Australia and consider now how they might embrace it.