In July 2010, the Telecommunications Regulatory Authority
announced a new regulatory policy for Unsolicited Electronic
Communications ("Spam Policy").
The Spam Policy applies directly to licensed telecommunications
providers ("Licensees") and to Electronic Communications
with a UAE Link. An Electronic Communication with a UAE Link is
defined in the Spam Policy to refer to electronic
communications:
- That originate in the UAE
- That originate from a company physically located in the UAE,
- Where the device used to access the electronic communication is located in the UAE; or
- Where the recipient of the electronic communication is physically present in the UAE.
Licensees have obligations under the Spam Policy to put in place
practical measures to minimize the transmission of Spam (i.e.
electronic marketing communications sent to a recipient without
their consent) with a UAE Link across their telecommunications
networks. Furthermore Licensees will be considered in breach of the
policy if they are aware of Spam with a UAE Link being sent to or
from an electronic address and they do not take all practical
measures to end and prevent the future transmission of that
Spam.
The Spam Policy incorporates the concept of "consent".
Where a recipient has consented to receive electronic marketing
communications, the communication cannot be classified as Spam. The
Spam Policy includes a number of consent principles and recognises
that all forms of consent are acceptable provided the process for
obtaining consent is clear and transparent and the consent can be
stored and presented in a tangible form. The Spam Policy specifies
that consents must be "opt in" unless otherwise specified
in one of the annexes (discussed below). The concept of Opt-In
consent requires the consent to be specifically obtained from the
recipient and, if the consent is not given, the recipient shall be
deemed not to have consented.
The Spam Policy also provides for a number of annexes to supplement
its terms. A Mobile Spam Annex has been issued which sets out
particular obligations required to be undertaken by Licensees in
relation to Mobile Spam (i.e. Spam sent as a mobile text
message).
For Mobile Marketing Communications, the Mobile Spam Annex requires
opt-out consent to be obtained from existing mobile customers but
opt-in consents from new mobile customers. Most existing mobile
users in the UAE will already have received opt out notifications
from the Licensees to record their consents.
The Mobile Spam Annex also imposes restrictions on:
- When mobile marketing communications can be sent;
- Prohibitions against encouraging mobile users to call or message premium numbers;
- Messaging services offered by a Licensee (i.e. services by which a Licensee sends mobile text messages simultaneously to more than one recipient on behalf pursuant to contractual terms) by requiring messaging services customers to comply with the Spam Policy and the Mobile Spam Annex and by ensuring Licensees include a number of contractual terms in their messaging services agreements including prohibitions against the initiating, sending or facilitating of mobile spam, requirements for consent, implementing effective unsubscribe facilities and controls on the time messages are sent.
The issuing of the Spam Policy and the Mobile Spam Annex is a
significant development for the UAE in the regulatory environment
for 'electronic communications that have a marketing element.
The Spam Policy and Mobile Spam Annex sets the framework for
preventing the seemingly endless bombardment of email and text
messages that are the cause of complaints by UAE residents.
We must wait to see what will be the full impact of the Spam Policy
on the commercial use of business contact lists and marketing
strategies. Whilst the obligations of the Spam Policy do not apply
directly to businesses, the Spam Policy enables the Licensees to
prevent consumers from being bombarded with Spam by (amongst other
things):
- Obtaining Users' consent to receiving marketing electronic communications;
- Implementing "do not contact" lists and specific obligations for mobile marketing messages delivered via contractual arrangements with the Licensees;
- Restricting the hours of sending marketing electronic communications to mobile users and preventing the sending of such messages between the hours of 9pm and 7am;
- Providing customers with information and resources to help them minimize the level and impact of mobile spam (including reporting of suspected mobile spam, making special functions available on mobile handsets that enable users to accept or reject certain types of mobile text messages); and
- Taking steps to end or prevent Spam from being sent from known addresses.
Businesses who do not want their marketing messages to be
considered to be Spam and their "known addresses"
blocked, or businesses who contract with Licensees for the delivery
of text messaging services, should consider implementing strategies
to start collecting and recording consents on similar terms to
those provided in the Spam Policy and (for mobile marketing target
lists) in accordance with the Mobile Spam Annex.
It is important to note that this article contains only a brief
overview of the Spam Policy and it is recommended that businesses
seek more detailed advice as to the potential implications of the
Spam Policy on their contact databases and the proposed uses of
their marketing target lists (including those that have been
purchased or rented).
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.