When an O2 customer signed up for mobile phone services in 1998, she agreed to receive ‘marketing communications.’ Could O2 then send unsolicited marketing texts in 2004 without an opt-out opportunity? More on the ASA’s verdict and the relevant law
The Advertising Standards Authority
A complaint was made to the Advertising Standards Authority over a promotional text message from O2 stating, "Get sport alerts & more. Text ACTIVE to 2020 to set up, then go 2 Info Services 2 subscribe 2 alerts. Terms @ o2.co.uk. Each alert from 13p to receive". The complaint was that the text message did not include an opportunity to opt out of receiving further marketing text.
In its defence, O2 argued that as the message was sent to existing customers, O2 already had the complainant's consent to send marketing in any form, including text messages. They sent a copy of the recipient's original 1998 contract with its predecessor BT Cellnet as evidence. Based on that, O2 argued that because the complainant had given permission for them to send marketing communications, they did not need to provide an embedded opt out or unsubscribe option whenever they sent her a text message.
The ASA noted that the complainant's contract was signed in 1998 and did indeed include wording by which consent was given to receive "marketing communications." However, marketing by text message had not by then been established as an advertising medium, so it was not possible to say that the recipient had expressly opted in, at that time, to receiving promotional texts.
In the circumstances, the recipient had not given prior "explicit consent" to receiving promotional text messages and she was therefore entitled to be given a simple to use opt out opportunity, every time she was sent such a text by O2.
Why this matters:
This is a very important decision given the identity of the advertiser concerned and the high likelihood that the complainant in this case was only one of a very many individuals who were in the same boat.
The verdict makes it clear that ticking a box to consent to receive "marketing communications" in general, especially at a time well before text messaging was a known marketing medium, is not going to be regarded as giving the "explicit consent" required by the CAP Code for sending text messages to non customers. The same will apply to the equivalent legal requirement under the 2003 Privacy and Electronic Communications (EC Directive) Regulations.
But apart from including an opt out opportunity, what about the sending of the text in the first place? If there was no prior explicit consent, the only way it could be sent it in conformity with the CAP Code was if:
1. the recipient's mobile phone number had been obtained in the course of a sale or negotiations for a sale;
2. at that time the recipient was told they could opt out of future marketing and did not do so;
3. the message promoted the sender's own similar products; and
4. a simple to use opportunity to opt out of receiving future marketing texts is contained in the message.
So the question is, could the O2 message have been Code compliant, even if it had included the opt out opportunity? Requirements 1, 3 and 4 would then be satisfied, but what about 2? If an agreement to receive "marketing communications" was not enough to qualify as an opt in, surely it could also not qualify as a valid opportunity to opt out?
The answer would seem to turn on whether the opportunity to opt out has to explicitly refer to text messaging as a channel the sender might use. The CAP Code does not make clear whether this is required, but the 2003 Regulations do make it clear that this is required by law for the customer "soft opt in" route to compliance to be available. As the CAP Code requires all marketing communications to be legal, we can only assume that by some other route the telecoms giant gave the recipient a valid opt out opportunity, otherwise the message in question would have been adjudicated non compliant on two counts.