United Kingdom (UK) anti-spam guidelines, and the resolution of a set of complaints about an SMS marketing campaign, provide interesting insights into the legal limits of SMS marketing and the way Australia's new Spam Act could operate when a marketer does not have express consent to send SMS for marketing purposes.

Complaints

In an English case decided by the British Advertising Standards Authority (ASA) on 23 June this year, consumers complained about the unsolicited receipt of SMS advertisements encouraging them to update their phones at the end of their current contract. The messages were sent to existing customers, and also to:

  • individuals who hadn't been involved in a sale with the company advertising but had formed an 'active relationship' in some other way, for example through entering competitions, and

  • individuals whose details had been acquired 'passively' from their participation in market research; by being bought or rented from a third party; or by guessing numbers from a database of customers whose numbers were thought to be over 12 months old.

UK Industry Code Restrictions

Advertising in the UK (except that on TV and radio) has traditionally been self-regulated by the industry using the British Code of Advertising, Sales Promotion and Direct Marketing, or (CAP Code). The latest version of the CAP Code (effective from 4 March 2003) requires:

'(t)he explicit consent of consumers … before … sending marketing communications … to mobile devices, save that marketers may send unsolicited marketing about their similar products to those whose details they have obtained in the course of, or in negotiations for, a sale. They should, however, tell them they may opt-out of future marketing both when they collect the data and on each occasion they send out marketing communications and should give them a simple means to do so.' (emphasis added)

UK Anti-Spam Laws

In addition, on 11 December 2003, the Privacy and Electronic Communications Regulations 2003 (PEC Regulations) were implemented in the UK. These regulations apply to all direct marketing by electronic means and require that, if the recipient has not provided explicit consent, electronic marketing messages (including SMS) should not be sent unless the sender:

  • collected the contact details in the course of a sale or in negotiations for a sale

  • is marketing their own similar goods or services, and

  • gives the recipient the chance to opt-out when collecting their contact details and in every subsequent marketing message.

'In The Course Of, Or In Negations For, A Sale'

Both the CAP Code and the PEC Regulations require that a marketer must have collected contact details 'in the course of, or in negotiations for, a sale' before they can even consider sending electronic marketing without express consent.

The UK Information Commissioner has published guidelines which indicate how he interprets the phrase 'in the course of a sale or negotiations for the sale' as follows:

'A sale does not have to be completed for this criterion to apply. It may be difficult to establish where negotiations may begin. However, where a person has actively expressed an interest in purchasing a company's products and services and not opted out of further marketing of that product or service or similar products and services at the time their details were collected, the company can continue to market them by electronic mail unless and until that person opts out of receiving such messages at a later date.

As an ... example, if you send an email to a national retailer asking them if they are going to open a branch in your town, you would expect a response of "yes" with details or "no" perhaps with details of their other stores in your area. This query does not, however, constitute part of a negotiation for the sale of a product or service. It does not constitute an invitation to the retailer to send you further information about their products or services. Nor does it indicate consent to receive further promotional emails from that retailer. The retailer could send you emails promoting their products and services if you a) expressly invited them to, b) consented to their suggestion that they send you promotional emails or c) did not object to the receipt of emails in the course of a sale or negotiations for a sale.'

Decision

The advertiser in the UK case advised the ASA that future text messages could give consumers a means of opting out, but stopping sending unsolicited messages completely would have a severe impact on their business and threaten many jobs.

With respect to the first class of individuals (those with whom there was an 'active relationship', but no sale or negotiation) the ASA required that the advertiser send only one marketing communication (presumably by SMS), asking for permission to use their data. Where no response was received, the ASA said that it should be assumed that the consumer not given their permission.

With respect to consumers that it had not formed an active relationship with, the ASA required the advertiser to get their explicit consent before sending any SMS messages to them in future.

The Position In Australia

The sending of marketing messages by SMS is now regulated in Australia by the Spam Act 2003, which commenced on 10 April this year. Under that law, significant civil penalties (of up to $1.1 million per day) can be imposed for sending SMS messages without consent. Like the CAP Code, the Australian Spam Act contemplates that consent can be inferred from an existing business relationship, although the Australian criteria are arguably wider. Under the Australian provisions, if express consent has not been obtained, consent may still be inferred (in appropriate circumstances) from 'the conduct and the business and other relationships of the individual and the organisation concerned'; rather than the more limited requirement that the contact details must have been collected 'in the course of a sale or in negotiations for a sale'.

The observations in the UK case, and guidelines, together with the Australian Communications Authority own guidelines (available at www.aca.gov.au/consumer_info/frequently_asked_questions/spam_business_practical_guide.pdf) may nevertheless be useful in determining the practical limits of inferred consent. Of course, if the Privacy Act 1988 applies to an organisation, the National Privacy Principles, must also be followed.

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.