The limitations of the Telephone Preference Service were highlighted in this case of million-plus texts to unsuspecting recipients.
Who: Moby Monkey, ICSTIS and DMA
When: August 2002
Leeds-based Moby Monkey sent more than 1 million text messages to mobile phones across the country, many of whom were children's handsets. The messages urged recipients to call a premium rate number to claim a "£500 mystery award" discount voucher, but the terms and conditions were not disclosed and the calls cost £1.50 per minute, with some receiving the same text message up to 40 times per day. Premium rate telephone line watchdog the Independent Committee for the Supervision of Standards for Telephone Information Services ("ICSTIS") was soon in receipt of more than 200 complaints. After investigating, ICSTIS imposed a £50,000 fine on Moby (the third largest it had ever imposed and the largest against any promotion using text, and barred access to the promotion lines).
In the wake of this decision, industry body the Direct Marketing Association complained about a lack of clarity surrounding the regulatory position. In particular it was concerned about the role in all this of the Telephone Preference Service. This is the statutory preference service operated by the DMA's sister body the Direct Marketing Authority under licence from the Government. It was set up pursuant to the Telecommunications (Data Protection and Privacy) Regulations 1999, which imposed a statutory obligation on telemarketers to check, before conducting telephone marketing campaigns with the Telephone Preference Service as to what individuals had opted out of receiving direct marketing telephone calls. Tessa Kelly, Director of Compliance Operations at the DMA, said "The TPS currently takes registrations from consumers wishing to register their mobile number with the TPS, but because of the legal confusion surrounding SMS, we are not in a position to guarantee that a consumer will not receive marketing messages via SMS, despite being registered." Guidance was requested by the DMA from the Information Commission to help the process of dealing with consumer complaints.
Why this matters:
One can sympathise with the DMA's plight, but the legal position is crystal clear. The 1999 Telecommunications (Data Protection and Privacy) Regulations 1999 made it illegal to operate "automated calling systems" for direct marketing purposes which are targeted at any individual who has not previously "opted in" to receiving those calls. Insofar as commercial SMS is activated by automated calling systems, this clearly comes within that part of the 1999 Regulations.
This means that for these purposes the Telephone Preference Service is irrelevant. The TPS only applies to non-automated, analogue calls made for marketing purposes by individuals to other individuals. Where the outgoing commercial calls are automated, the "automated call" part of the 1999 Regulations cuts in and imposes "opt-in". Furthermore, since an "opt-in" regime requires an express request made by the individual to the potential caller that direct marketing calls should be made to them in the future, a "preference service" along the lines of that currently operated by the Direct Marketing Authority is not going to work. Hardly a clear picture for Jo Public and no wonder that the DMA has been hard pressed to handle complaints from those who have registered with the TPS and expected this to prevent campaigns of the kind run by Moby Monkey.