With continuing concerns expressed over the legality of mobile marketing using Bluetooth technology, a Cambridge-based company has come up with what it claims to be the solution. But is it the answer?
Bluecasting compliance silver bullet?
Are marketers tuned into the legalities of Bluecasting?
What is Bluecasting?
Over recent months marketers have been switching on to the potential benefits of "Bluecasting" as a marketing tool. "Bluecasting" is the use of mobile Bluetooth technology to contact individuals whose mobile handsets are Bluetooth-enabled via a secure, low-cost, short-range radio frequency. When a consumer comes within range of a Bluecast Server and switches their mobile phone to "discoverable", the server recognises the handset and then sends the information concerned to it via Bluetooth. Bluetooth is becoming a real alternative to SMS and MMS marketing campaigns as it is capable of enabling marketers to reach a group of people all 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 and therefore does not need to be passed through a mobile network. Bluetooth provides marketers with the opportunity of sending content such as music downloads, short video clips and WAP links to consumers via an alternative means and is particularly attractive given the uptake in 3G content.
How has it been used?
In 2005 Maiden Outdoor conducted a Bluetooth experiment whereby it combined its Transvision screens in main London railway stations with Bluetooth technology to promote Coldplay's new album X&Y. The Bluetooth transmitters sent a free download track from the album to over 10,000 consumers passing through the stations. Marketers and advertising agencies are not the only ones recognising that proximity servers have great potential for time or location critical advertising to mobile device users. Nokia has also entered the market with a 'Local Marketing Solution' application suite that enables conference schedules to be sent to attendees' mobile phones and PDAs by either Bluetooth or infra red technology.
What legal considerations are there?
Looking at Bluecasting from a strictly legal perspective, a marketer needs to acquire prior explicit consent from all intended recipients before sending them an unsolicited Bluetooth marketing message to their mobile handset. This is required by two provisions of the Privacy and Electronic Communications (EC Directive) Regulations 2003. Insofar as the process uses "location data" as to the geographical location of the handset, consent is required by Para 14(2), based on prescribed prior disclosures set out in Para 14(3). Also Para 22's prior notification of consent rule applies to unsolicited video clips and music downloads sent to a mobile just as much as it does to text messages.
Some early users of Bluetooth have argued that if a person's mobile device is Bluetooth-enabled and set to the "discoverable" or "open" mode then this means they are welcoming Bluetooth messages to their handsets. This has therefore been taken as an implied consent to receive marketing communications. The downfall of this argument is that a person a marketer intends to communicate with may have simply bought a device that is capable of being Bluetooth active and set to receive such messages but the person who bought the handset may not even be aware of this as all handset manufacturers treat Bluetooth capabilities differently. It is therefore inadvisable to infer consent from the fact that a handset is set in a particular mode. This is also not considered adequate to be deemed consent required under data protection legislation.
How can marketers limit their legal liability?
Problems posed by Bluecasting from a legal perspective include that it is difficult for people to provide an "opt-out" request to a Bluetooth marketing system or indeed an opt-in and there is no possibility of consumers being able to "Reply" to a Bluetooth message to unsubscribe as it is not a message solution like SMS. For SMS campaigns, consenting consumers can be easily identified by their personal details and of course their mobile phone number but marketers cannot distinguish between consumers passing through a particular location such as Victoria train station near a Bluetooth transmitter. There is therefore a real risk of breaching the Privacy and Electronic Communications Regulations 2003 and data protection legislation.
New solution?
Cambridge-based mobile technology company Hypertag has come up with what it argues is a solution for marketers wanting to use Bluecasting. They assert that they have found a way for consumers to signal their consent to this form of communication by setting Bluetooth transmitters so that they only broadcast to devices with a particular code word in their names.
Hypertag apparently argue that consumers who want to receive marketing messages or branded content via this medium can indicate this by temporarily changing the name of their Bluetooth devices to include a specified code. From a legal perspective this could work if the marketer places a placard of some discription by the transmitter which explans who the potential communication is from and what it is and how individuals can change their settings to receive the message there and then.
Hypertag have also developed a low-power Bluetooth transmitter with a range of just a few metres. It is suggested that if this type of a transmitter were to be used then consumers who want to indicate their consent and receive the content concerned could walk up to the transmitter to be within its range and all other consumers can keep out of the specified range and therefore exercise their right not to receive communications. This approach is more dubious from a legal perspective and is more akin to the 'implied consent' approach taken by Maiden Outdoor. Consumers could found themselves unwittingly within the range of a transmitter and sent communications they had not requested or consented to.
Marketers beware?
To date there has been no legal challenge concerning the practice of Bluecasting and the practice of accepting a handset device in Bluetooth "open" mode as being implied consent for the receipt of marketing communications via this medium. However, legally speaking this approach is dubious. The Information Commissioner's Office (ICO) has also indicated that they believe all individuals must give their prior consent to an organisation before it sends them any direct marketing messages including those sent via Bluetooth technology. This indication from the ICO is something that marketers should not ignore and they are therefore advised to apply the same care and due diligence in gaining consent for Bluetooth messages as they are any other mobile marketing communication. Just because the medium is different does not mean the legal obligations are.
For further advice or assistance relating to mobile marketing contact Anna Montes via anna.montes@osborneclarke.com.
13 April 2006
anna.montes@osborneclarke.com
+44 (0)20 7105 7174
www.marketinglaw.co.uk
