In its text messages offering free camera phones, did World Networks offer a compliant means of opting out of receiving future marketing texts? Stephen Groom reports on the outcome after three recipients complained to the ad regulator.
Who: Mobile marketing
Where: The Advertising Standards Authority
When: February 2007
A complaint was made to the Advertising Standards Authority ("ASA") about a promotional text message sent by World Networks ("WN") to the complainant's mobile phone stating:
"Orange customer, you may now claim your FREE CAMERA PHONE upgrade for your loyalty. Call now on 0207 386 4925. Offer ends 4th August. T & C's apply. Opt-out available."
Four CAP Code breaches?
There were four complaints.
First it was queried whether the text misleadingly implied it was from Orange.
Secondly it was suggested that the message was misleading because when the complainant called the number given, he was told he was not eligible for the upgrade.
Thirdly it was queried whether, as required by the CAP Code for unsolicited marketing texts, prior explicit consent had been obtained before sending the message.
Fourthly the message was challenged as misleading as it did not tell recipients how to opt out of receiving further messages.
Misleading as to sender?
In its defence on the first count, WN said the text did not state Orange was the sender and that recipients who called the number given who were in any doubt would immediately be clear as to who had sent the message as their automated answering system answered all incoming calls "Thank you for calling World Networks." Furthermore, all sales staff answered calls saying "Good morning/afternoon, World Networks."
So far as the ASA was concerned, what happened after the text was sent was irrelevant. The CAP Code and the law (the Privacy and Electronic Communications (EC Directive) Regulations 2003 or "PECRegs") make it quite clear that marketing emails or texts must not disguise or conceal the identity of the sender. Recipients were likely to assume from the message "for your loyalty" that the senders were working directly with Orange and since this was not the case the message was misleading.
Misleading as to eligibility?
WN said that the "T & C's apply" caption implied that recipients were possibly but not automatically eligible.
The ASA noted this but said that the words "you may now claim your FREE CAMERA PHONE upgrade" created the impression that all recipients were able to claim an upgrade and not that they might be able to do so. Misleading on this aspect also.
Prior explicit consent obtained?
WN said the message had been sent in error and no admitted that had no evidence that prior explicit consent been obtained from recipients. They bought lists of numbers from a marketing company and the only information supplied was the network to which they subscribed.
Again therefore the Code had been breached.
Opt out requirements satisfied?
WN said recipients could call the local rate number included in the message to ask to be taken off their list. This would cost less than a standard rate text message. Alternatively recipients could contact them via their website at no cost as the web address was in the sender i.d.
WN said they thought these methods were acceptable under the PECRegs.
The ASA said the message should have stated explicitly that recipients who wanted to opt out could do so by using one or more of the acceptable opt out routes for marketing texts.
ICO Guidelines on opt out routes for texts
The ASA referred to the newly revised Guidelines on the PECRegs published by the Information Commissioner's Office as to how to comply with the requirement at Regulation 23 (b) that all direct marketing emails and texts, whether solicited or unsolicited, must include a "valid address to which the recipient of the communication may send a request that such communications cease."
The ICO now says that text marketers should provide a postal or email address or a short code number given at the bottom of the message to which an opt out message could be sent. The Guidelines state that short codes will be regarded as a valid address to send opt out messages to provided the sender ensures that:
- it clearly identifies itself in the message (for example "World Networks Ltd" in this context);
- using the short code does not incur a premium rate charge; and
- the short code is valid.
Since in this case none of the opt out methods suggested in the Guidelines was explicitly mentioned as an opt out method, WN had failed to meet the requirement of para 43.4 c that recipients be given a "simple means" of opting out.
Accordingly again the complaint was upheld.
Why this matters:
First of all this case highlights an omission in a previous marketinglaw.co.uk report, for which we apologise. When mentioning that a new version of the PECRegs Guidelines had been published in December 2006 we failed to refer to this new clarification for text marketers.
The case also underlines that when it comes to compliance with the PECRegs and the CAP Code, text marketers cannot hide behind the limitations that the technology places on the quantity of content that can be communicated and must still ensure that the ability to opt out is explicitly dealt with in the manner required and give one or more of the opt out methods that have the blessing of the ICO.
Finally the verdict reminds us of the rules as to transparency on the identity of the sender.