By George Newhouse and Isabel Janssen -
Snapshot
- Billions of dollars are raised in crowdfunding campaigns around the world, but the legal and financial risks of using these platforms are only just starting to be understood.
- Advising clients in this area requires consideration of many different areas of law, including fundraising laws, tax law, Australian Consumer Law, fraud, defamation and trusts. Lawyers also need to monitor their professional obligations regarding their trust account if crowdfunds are held in trust.
- Reform is needed to provide greater clarity to campaign organisers, donors and beneficiaries.
Australians are a generous bunch. In 2018, Australians donated over $10.5 billion to charities (Australian Charities Report 2018) and in 2019 Australia was ranked by GoFundMe as the third most generous country in the world. However, fundraising platforms can throw up complex legal issues ranging from tax and trust obligations to consumer and criminal law. Consumers such as organisers, beneficiaries and donors need more education, protection and certainty, and lawyers need to take care if they are advising them or holding funds derived from crowdfunding campaigns.
Background
The advent of crowdfunding platforms has given many donors and beneficiaries the impression that traditional fundraising red-tape has been cut back to allow stakeholders to deal more directly with each other. The most well-known of these platforms is GoFundMe, popular in Australia and internationally. Launched over a decade ago in California, GoFundMe has raised over $9 billion through 120 million donations worldwide and it is estimated that one in 10 Australians has donated using the platform. Whilst crowdfunding platforms have allowed for an easy, often very personal fundraising process that can be set up in a matter of minutes, it has also exposed well-intentioned users to new types of legal and ethical risks.
Charitable fundraising laws
In Australia, fundraising laws are confusing and vary from state to state. Also, the concept of fundraising is defined differently in each jurisdiction. Such complexities have led to the founding of the #fixfundraising campaign led by supporters including Philanthropy Australia, Chartered Accountants Australia & New Zealand, and the Governance Institute of Australia. The need for reform has been cast into an urgent light with the COVID-19 crisis as charities pivot to online fundraising at a time of great Australian hardship.
