marketing It’s already available from the MMA, the IPA, the OIC, the DMA and ICSTIS, so do we really need yet more guidance on compliant marketing to mobile phones? The Committee of Advertising Practice clearly thinks so. But is their guidance legal?
Who: The Committee of Advertising Practice
When: May 2004
The Committee of Advertising Practice, the sister body to the Advertising Standards Authority which draws up and enforces the CAP code of Advertising, Sales Promotion and Direct Marketing, has published a "Help note on mobile marketing".
An opening "Janet and John" section reminds us that there are essentially three types of mobile marketing, SMS text messages, which remains the most ubiquitous, MMS or multimedia messaging which allows static, animated images, sound clips and or polyphonic ring tones as well as text to be sent, and 3G, the most advanced technology currently available, which allows video clips to be sent to other 3G mobile devices.
Continuing in a basic vain, mobile marketers are reminded that they must comply with the law, particularly the Data Protection Act 1998 and the Privacy & Electronic Communications Regulations 2003 as well as compulsory codes such as the CAP Code and the ICSTIS Code of Practice including its guideline No. 20 on premium rate SMS.
Other relevant best practice guidelines and trade association codes mentioned are the Direct Marketing Association Code of Practice, the Institute of Practitioners In Advertising Guidelines for Mobile Marketing, the Mobile Marketing Association Code and the Information Commissioner's Guidance on the Privacy & Electronic Communications Regulations.
The Help note refers to the new, revised CAP Code sections applicable to mobile marketing. These generally require prior explicit consent before sending marketing messages to mobile phones, but allow opt-out for messages sent to company employees' mobile phones where the message relates to "business products."
Having said this, the Help note goes on to say that "if possible, marketers are urged to seek explicit consent from everyone before sending mobile marketing." So according to the CAP, best practice appears to be to ignore the B2B "business product" opt out and go for opt in whoever the recipient and whatever is being marketed.
"Similar products" help
Going further in guidance on the so-called "soft opt-in" exception which allows mobile marketing on an opt out basis to recipients who are existing customers or who have negotiated to buy a product from the marketer, the Help note talks about the meaning of "similar products."
This is important because "soft opt-in" applies only where future messages relate to "similar products". The Help note suggests that these include products that consumers would reasonably have expected to be marketed to them at the time that they first provided their mobile phone number.
It follows, the Help note goes on, that "marketers should take reasonable steps when collecting consumers' contact details to ensure that consumers are aware of the kind of products they deal in."
"Negotiating to buy?"
Again by way of further guidance on soft opt-in, the Help note talks about the situation where a consumer may have established contact with the marketer, but not necessarily bought a product from that marketer or negotiated to buy. In such cases, the Help note continues, the consumer may have "actively formed a relationship" with the marketer, for example by interactive voting or responding to a prize promotion. Here, the consumer may be sent one mobile communication asking for explicit consent to use that data for direct marketing purposes. Unless the consumer responds positively to that message, the marketer should not send any further such messages.
This is not consistent with the law as interpreted by the Information Commission ("ICO") in its Guidance on the relevant parts of the Privacy and Electronic Communications (EC Directive) Regulations 2003 ("PECRs").
The ICO says that if it is clear from the type of prize promotion that it is being conducted to encourage sales by the promoter, then it might be possible to argue that the process of entering the prize draw or competition constitutes "negotiating to buy" If so, then it is soft opt in. If this is not the case, however, then it is not soft opt in. This means that unless the prize promo entrant has previously expressly opted in to receiving such messages, it will be illegal to send them a subsequent message asking them to opt in to direct marketing use of their mobile phone number.
The same will apply clearly to all those using mobile phone numbers to vote, so here the CAP Help note appears to be encouraging a practice that is potentially illegal. Oh dear.
As regards for the need for explicit consent, the Help note underlines that this must be given by consumers themselves and not by others on their behalf, except when it comes to children, where different rules apply.
Third party opt-ins
The PECRs require that unsolicited direct marketing messages to mobile phones, outside of B2B or soft opt-in, have to be prior opt-in. In other words the recipient of the message has to have previously notified the sender that they do not object to receiving such messages.
Like the Information Commission, the CAP Help note does not demand that the recipient actually communicates direct with all of the marketers who may then send messages. For those subsequent third party messages to be compliant, the consumer must simply have given explicit consent to receive direct marketing from a range of different companies about a range of different products. Ideally, the Information Commission says, the types of companies and the types of products involved must be described.
When mobile marketers collect data from individuals, according to the Help note they must give an opportunity to opt-out of receiving further marketing messages to their mobile phones. Again this is not the law, but presumably the CAP view of best practice. If it is, however, it falls short of the law outside of a "soft opt-in" situation..
The PECRs say that if it is a soft opt-in "customer" scenario, such an opt out opportunity must be given. If not, then it is opt in.
On the opt out opportunity, the Help note points out that this can be provided by way of abbreviations so long as these are likely to be understood by the audience addressed. For example, the following is likely to be acceptable: "2 STOPMSGSTXT'STOP'TO…" These must allow consumers, with the minimum effort and the minimum unavoidable cost, to state they object to future direct marketing. Here, the Help note also indicates that the opting-out process must not be the subject of a premium rate charge.
Third party/significantly different use
The Help note reminds us here that if, after the point of collection, there is any plan to share collected personal data with third parties or put it to significantly different use to what was apparent at the point of collection, then these other uses must be the subject of prior explicit consent.
The Help note also indicates that retailers, dealers or other intermediaries who obtain data from their customers should not pass that data on to the manufacturer of the products that the customers bought without explicit consent to do so.
Future messages – opt-out mentioned every time?
Once explicit consent has been obtained to pass the mobile phone number to a third party or to use it for significantly different purposes to those envisaged at the time that the number was first obtained, is it necessary to tell them they can opt-out of receiving future such messages, every time a message is sent?
This depends, according to the Help note, on whether the message is sent by a third party and on whether that third party identifies the original permission holder (in other words the entity that first captured the mobile phone number). If this is not the case, then the opt-out opportunity must be flagged up each time a message is sent and the consumer given the opportunity, with the minimum effort and the minimum unavoidable cost, to state that they object to future direct marketing.
If, however, third party marketers do send mobile marketing communications that identify the original permission holders, they need not tell consumers in every message that they can opt-out of having their data used, provided that they provide the identity of the marketer and a valid address (for example a web address or text back channel) that allows consumers to send opt-out requests, plus access to a full address.
Again this diverges from the law. The PECRs say nothing about identification of the original permission holder. All they say is that in the soft opt in scenario, where the original permission holder sends further texts marketing its own similar products, an opportunity to opt out simply and free of charge, must be given each time such a message is sent.
In all other cases, it is simply a matter of providing a valid address, somewhere in the message, to which the recipient can send an "unsubscribe" request.
So here the CAP is advocating something beyond the legal minimum, no doubt as its view of best practice.
Reacting to opt-outs
On receipt of a mobile request to opt-out/unsubscribe, the Help note requires mobile marketers to suppress the relevant personal data (for example the mobile number) as soon as practically possible to ensure the consumer receives no further marketing communications. Mobile marketers should also hold enough information to ensure that no further direct marketing is sent to opted-out consumers as a result of their data being re-obtained through a third party.
Identifying the mobile marketer
All mobile marketing communications, the Help note goes on, must contain at the very least the identity of the marketer and a valid address, for example web address or text back channel that allows consumers to send opt-out requests and access to the full address. This is the law.
The Help note reminds us that providing only a premium rate mobile route to enter a prize draw would not constitute free entry and would be illegal, though providing only a text a back channel charged to the minimum unavoidable cost probably would be acceptable. Here the Help note suggests that promoters take legal advice before embarking on such promotions.
Here the Help note lists the various requirements in the CAP Code as to prize event rules. Clearly there are going to be space constraints for mobile marketers here, but the Help note urges promoters to include in the promotion relevant significant conditions and any other major factors reasonably likely to influence consumers' decisions to respond to the promotion.
Marketers may use abbreviations so long as they are likely to be understood by the audience addressed. If necessary, promoters should state how consumers can request (or where they can view) additional conditions. Consumers should be able to retain those conditions or have easy access to them throughout the promotion.
Premium rate mobile marketing
Marketers are referred to the ICSTIS Code of Practice and in particular its Guideline No. 20.
In particular the Help note urges mobile marketing communicators to include a clear statement of the total charge to consumers for responding via a premium rate mobile route or for receiving future mobile communications charged at a premium rate. The latter, often called "reverse-charged" or "reverse-billed" services, may require the clear statement of both premium rate charge plus a reference to the fact that consumers' normal network tariffs will apply.
Marketing to children
The Help note underlines that verifiable and explicit consent should be obtained from a parent/guardian before communicating with children via mobiles. A statement informing children of the requirement for parental/guardian consent must be given at the point where the personal information is requested. This statement should be clear, prominent and in the language which a child can easily understand. It should also include an explanation of the purposes for which the data are collected (i.e. marketing purposes) and how consent may be given.
Why this matters:
As the CAP Help note itself indicates, there is now a raft of codes and guidelines relating to mobile marketing in the UK, and with the appearance of this Help note we have surely reached saturation point. Nevertheless this particular guide is clear, practical and helpful and all those involved in mobile marketing would do well to check through its terms. However, we do have concerns that in some areas it recommends practice which might fall short of the legal requirements, whilst in others it might have been helpful for a Help note to indicate when it was simply reminding us of the law and when it was urging "best practice" beyond the legal minimum.