Member Article

The US tightens the noose on rogue text marketers – is the UK next for restrictions?

Marketers who do not have prior written consent from consumers to send them marketing messages via SMS will potentially face fines of up to $1,500 per unsolicited message starting Oct. 16 under new guidelines.

The new Telephone Consumer Protection Act guidelines going into effect next month require written, auditable consent for every consumer in a mobile database. Under previous legislation consent could be express, which means that if a company had previously done business with an individual they could be legally marketed to without redress. For those marketers not already using written consent for their opt-in programs, the new guidelines will require a significant change in how they structure their programs.

A review of 50 brands currently engaged in SMS marketing revealed that although all were compliant under the old legislation, none would be deemed as complying with the new guidelines which come into effect on October 16th 2013.

Existing databases have to be cleansed with exiting opt-ins having to opt-in again to ensure full compliance; essentially the brand or brand marketer needs to obtain written consent from their existing opt-in database.

The guidelines are retroactive, which means that post October 16 marketers must have a new written consent from someone already in their mobile database, in order for them to market to their database legally.

The guidelines were announced over a year ago, and marketers who do not have the required written consent can be sued, with fines of up $1500.00 per non-compliant messages.

Fines totalling millions of dollars have already been imposed on US marketers for breaches under the existing regulations and the lawsuits are really expected to fly after October 16th when the new regulations come into force.

In addition there is a requirement to add an opt-out message to the marketing message, which may cause the message to span two SMS pages.

How will this affect the UK marketer or consumer?

The Privacy and Electronic Communications Regulations 2003 already cover the way organisations send direct marketing by electronic means, including by text message (SMS).

Organisations legally cannot send you marketing text messages you didn’t agree to receive, unless:

the sender has obtained your details through a sale or negotiations for a sale; the messages are about similar products or services offered by the sender; and you were given an opportunity to refuse the texts when your details were collected and, if you did not refuse, you were given a simple way to opt out in all the text messages you received.

The Regulations do not cover marketing text messages sent to business numbers however, so the B2B marketplace is still fair game for text spam.

There are a few ways the consumer can protect themselves from unwanted text spam:

Be careful who you give your telephone number to. Don’t advertise your telephone number, for example by putting it on the internet. Check privacy policies and marketing opt outs carefully. Use them to tell the organisation not to contact you by text.

As with everything across the pond, expect some importation of the litigious veal of the US citizen to the wronged consumer in the UK, with legal cases involving regulation breach rising dramatically.

If you are a mobile marketer tempted by the ‘unlimited text’ plans offered by mobile phone network providers to fire out messages to all and sundry, think again.

As with the PPI claim blitz and the no win, no fee insurance claim that we have all suffered on our mobiles, there will be a breaking point for the consumer and the legal repercussions could be hefty.

If you do receive marketing by SMS that you think breaches the Regulations you should write to or email the organisation concerned, keeping a copy of all correspondence for future reference.

However, if you are unsure who the message comes from you should not respond to the message, as doing so confirms that the message has reached a ‘live’ customer, which can sometimes lead to premium rate services being charged to your phone. If you know who sender is, you can try to opt out from further messages by texting ‘STOP’ to the telephone number or by sending the 5-digit short code displayed in the text message.

If you are receiving texts that you are being charged for you can contact PhonepayPlus (http://www.phonepayplus.org.uk/). They regulate products or services that are charged to users’ phone bills or pre-pay accounts.

Other abuses can be reported directly to the Information Commissioners Office (www.ico.org.uk/‎)

This was posted in Bdaily's Members' News section by James McRoy .