First the UK’s privacy watchdog dropped “opt in” for use of “Bluetooth” technology to send short range marketing messages. Then France went the other way and introduced opt in, then CAP’s proposed new ASA- enforced ad code looked to be changing to opt out, then the DMA went for…Anna Montes tries to keep up.
Topic: Mobile Marketing
Who: The French Commission for Information and Liberties, the UK Information Commissioner's Office, the Committee of Advertising Practice and the Direct Marketing Association
When: April 2009
Where: United Kingdom
Law stated as at: 1 May 2009
Bluetooth marketing has been the subject of much debate within the marketing sector over the last year. "Bluecasting" as it has become known is the use of mobile Bluetooth short-range radio frequency technology to send marketing communications to individuals whose mobile handsets are Bluetooth-enabled.
Bluetooth has become a real alternative to SMS and MMS marketing campaigns as marketers are able to reach a group of people present within a particular location, which can be of real benefit to specialised campaigns which are time or location critical. It also cuts out many of the operation costs associated with SMS or MMS campaigns as it is a device-to-device message which does not need to be passed through a mobile network.
The question of whether or not Bluetooth marketing requires prior consent from recipients of Bluetooth messages is a subject of debate within the mobile marketing industry. In France and the United Kingdom in particular the debate has been developing over recent months.
The current view in France
In France, Bluecasting was, until recently, often deployed by marketers through the use of Bluetooth transmitting billboards and other forms of signs which broadcast an invitation to passers-by to connect to the transmitter to receive a message. The French Commission for information and liberties (Commission nationale de l'informatique et des libertés, CNIL) considered such practices and reached the view that the use of Bluetooth technology for marketing purposes is intrusive. To control the use of Bluetooth technology for marketing purposes, the CNIL has recently issued new rules which require explicit prior consent to be obtained before marketing messages can be sent through Bluetooth means in France.
CNIL reached such a decision as it considered a mobile phone's Media Access Control (MAC) address to constitute personal information. As the MAC address is required to enable Bluetooth transmitters to send a marketing message to the mobile device concerned, CNIL decided that consent from the intended recipient should be required in advance of the marketing communication being sent. CNIL also made it clear that it did not like the use marketers had been making of Bluetooth transmitting billboards to broadcast invitations to accept content which sent messages to all passers-by and so ruled that the mass distribution of such invitation messages was also unacceptable. CNIL is of the view that just because a person's mobile device is set to receive Bluetooth communications, does not constitute an implied consent that the individual is open to any and every message – including initial invitations to receive commercial messages. CNIL has made it clear to marketers that a Bluetooth-enabled phone will be treated the same as any other mobile phone device and unsolicited marketing messages cannot be sent to that device, by whatever means, without adequate prior consent.
What now for French Bluecasters? Well CNIL has suggested they look to technology to find a way of obtaining prior consent from owners of Bluetooth-enabled devices. It has also been suggested that consent from individuals could be inferred if consumers knowingly bring their phones closer to a Bluetooth transmitter to show that they are interested in receiving the communication and so the use of a "call-to-action" is now recommended where Bluetooth marketing is concerned in France.
The current view in the United Kingdom
In October 2007, the Information Commissioner's Office issued a statement declaring that it no longer considered Bluetooth technology as falling within the definition of a "public electronic communications network" where the Privacy and Electronic Communications (EC Directive) Regulations 2003 were concerned and so Bluetooth marketing fell outside such regulations. Previously, ICO's advice had been that individuals should give their prior consent to an organisation before it sent them any direct marketing messages, including those sent via Bluetooth technology.
Many were concerned that this statement would give a green light to those who wanted to send Bluetooth "spam" as many consumers still do not like receiving unsolicited communications to their mobile phones as they see them as a very personal device. Debate therefore focused on whether there were any remaining legal issues with Bluetooth marketing and some of the existing issues with Bluetooth marketing include:
- Marketers are required to comply with the requirements of the CAP Code both to the letter and in spirit. Section 43.4(c) of the CAP Code requires that when "sending marketing communications … to mobile devices" explicit prior consent of consumers is required unless the customer soft opt-in or B2B/business products exceptions apply. Some believe that this section of the CAP Code relates to personal data only (which Bluetooth marketing does not process) however the CAP Code itself does not make this distinction explicitly. Many, including the Direct Marketing Association, believe that this provision should still be complied with by advertisers wanting to use Bluetooth technology and the principle of permission is still appropriate.
- One of the prohibited always "unfair" commercial practices listed within schedules to the Consumer Protection from Unfair Trading Regulations 2007 is "Making persistent and unwanted solicitations by telephone, fax, email or other remote media except in circumstances and to the extent justified to enforce a contractual obligation". The list of 31 prohibited "unfair" commercial practices has intentionally been drafted widely so that it can capture any practices in existence now or in the future, that are believed to be unfair in some way. Due to the broad way in which this particular prohibition is drafted, it is wide enough to potentially capture Bluetooth marketing within its remit. If a consumer therefore receives a number of Bluetooth communications from an advertiser within a short space of time, they could file a complaint with the authorities responsible for enforcing the Regulations (the Office of Fair Trading, Trading Standards and the Department of Enterprise, Trade and Investment in Northern Ireland).
Within the UK, the Direct Marketing Association has issued guidance on Bluetooth marketing best practice and has made it clear that it requires its members to undertake Bluetooth marketing on a permissions basis as with any other form of mobile marketing such as SMS marketing. Like the CNIL, it has suggested that consent is obtained via a 'call to action' such as very close range positive consumer interaction that requires the consumer to step forward to point of sale materials or related kiosk/wall and wave their handset close to a device. Bluetooth technology enables the distance of the network to be set so this type of application can be supported by setting the range down to a very near distance rather than transmitting to everyone who simply walks past the transmitter.
The Direct Marketing Association admits that its approach is more rigorous than the current approach in legislation, but believes such a stance is necessary because of the principles of permission marketing and because Bluetooth can deliver applications that can add to or alter a handset's functionality. The association suggests that one method marketers could employ to adapt to these new requirements is by promoting the availability of Bluetooth content via traditional poster media and invite people to "pair" with the marketing campaign. As long as a device is paired to the marketing campaign, the device is eligible to receive marketing messages relating to the campaign and the recipient can opt-out of future marketing messages by simply deleting the pairing.
However, there is not one view on Bluetooth marketing within the United Kingdom – the Committee of Advertising Practice has indicated that it does not consider Bluetooth marketing to fall within the remit of paragraph 43.4(c) of the Code and therefore does not consider prior permission to be a prerequisite for this form of marketing. It intends to address Bluetooth marketing in a more explicit way in the next draft of the CAP Code which is currently work in progress so we wait to see how they refer to mobile marketing in general in the new draft of the CAP Code.
Why this matters:
The recent approach taken by CNIL in France has highlighted to marketers that if they are rolling out a multi-territory campaign and there is to be a Bluetooth element to such a campaign, the local laws and regulations in each territory must be carefully noted. There have not been many formal complaints involving Bluetooth marketing to date but it is something that is hotly debated and which agencies and their advertiser clients have their eye on at the moment and there could always be a test case around the corner for the sector to learn from.
Where the United Kingdom is concerned, ICO has encouraged marketers to look to industry marketing guidelines when conducting Bluetooth marketing. At present, the Direct Marketing Association's Best Practice guidelines for mobile marketing are the industry guidelines available and they recommend Bluetooth marketing is carried out on a permissions basis with the same standards applying to that as apply to any other form of mobile marketing such as SMS marketing. The industry now awaits the new CAP Code and the Committee of Advertising Practice's formal view. If the new CAP Code takes a different approach to the Direct Marketing Association, we could see in the future Direct Marketing Association members needing to comply with requirements that are stricter than those that the rest of the marketing community need to comply with.