The Mobile Marketing Association has published an updated version of its December 2003 Code. What changes have been made to the MMA’s “Code of conduct and guidelines to best practice”?
Topic: Amended MMA code for responsible mobile marketing
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All those involved in the marketing and advertising sector have recognised that over recent years, mobile marketing has become an effective and innovative tool in the markerter's armoury. Over the last year alone we have seen an increase in the use of mobile for marketing and the public are becoming more used to their mobile being used for MMS/SMS marketing communications, WAP Pushes and now even "Bluecasting" through the use of Bluetooth and similar technologies. At present, mobile marketers need to apply existing legislation and regulatory codes to this new form of media as mobile-specific legislation has not been created to date. Various bodies have created best practice guidelines to assist advertisers and agencies to know how to best to stay on the right side of the law and the regulators.
In 2003 the MMA created its Code for Responsible Mobile Marketing (the "Code") with the intention that it would be a comprehensive code of conduct and best practice guidelines for the industry, based on its members' practical experience and the requirements of current legislation. Given the swift development of mobile marketing, in November the MMA released a new version of the Code following a review of the Code in the light of recent mobile marketing.
There has not been a large-scale amendment of the 2003 version of the Code. Instead the MMA have simply included some recommendations regarding the following issues:
1. Communications that do not support Opt In/Opt Out technology
The MMA have acknowledged that Bluetooth and other wireless channels generally do not discriminate between recipients so as to enable advertisers to ensure that recipients have opted in to receive the marketing communications. Bluetooth technology works by uploading content to every Bluetooth-enabled mobile phone handset that comes into a certain range of the transmitter. The MMA recommend that Bluetooth and similar technology should therefore only be used to broadcast marketing messages after a careful examination of the legal position concerned and a vague reference to any "other relevant circumstances". They acknowledge that since marketing messages can only lawfully be sent to a recipient that has opted in (or where the soft opt-in exemption applies) the use of Bluetooth carries a "significant risk" that messages sent through this media will be unlawful.
The message to marketers is therefore that channels which do not discriminate between recipients (depending on how they are used) and to not discriminate between whether they have opted in to receive marketing communications or not should be used with caution and a proper assessment of legal risk needs to be undertaken. Even if the marketer sends a message to all Bluetooth-enabled phones in an area to see if they want to receive such messages, this message in itself is highly likely to be unlawful and therefore does not resolve the issue of how such technology can lawfully be used.
2. Premium rate numbers
The MMA have included a new section in the Code to address common queries relating to the use of premium rate numbers. Rather than simply referring to the existence of the ICSTIS Code of Practice alone, the new version of the Code also highlights the fact that UK mobile operators may include the following (non-exhaustive list) as conditions within their contracts with marketers wishing to utilise their networks:
(a) that a standard message including details of service charges and billing frequency must be prominently displayed within any advertising for subscription text service (including specific fonts that should be used for all such messages);
(b) that a free reply test message should be sent from the content provider to users confirming the their subscription commitment to any mobile user using a subscription text service and that the marketer must also provide a standard or free rate customer helpline number and include this number in the reply text message; and
(c) that a website should be operated by the marketer that includes the terms and conditions for the premium rate service.
This section of the Code has therefore been included by the MMA to address the introduction by the UK mobile operators of their new rules to regulate premium rate subscription services and WAP/xHTML services billed using Premium Text. These new rules became effective as from 31st August 2005 and now form part of the terms and conditions all content companies/marketers will enter into with the UK mobile operators if they wish to make their services available to the UK market. The rules not only cover the subscription services themselves but also their associated marketing campaigns. Subscription services now well and truly have the eye of regulation upon them and this is something that companies offering such services can no longer ignore. This is the reason for the indirect reference to these rules in the new version of the MMA Code.
3. Website access
The 2003 version of the Code suggested that marketers consider using a website as a means of providing access to recipients of basic information applicable to a mobile marketing communication (such as any applicable terms and conditions or privacy policy). The 2005 version of the Code now states that providing access via a website is certainly 'best practice'. Furthermore, where a premium rate service is involved website access is likely to be an obligation under the contract with the mobile network provider and will therefore be a contractual obligation for the marketer to comply with rather than simply a matter of best practice.
4. STOP response mechanism
The 2003 version of the Code provided that if marketers were not providing a "STOP" response mechanism within their mobile communications that they needed to provide a clear, memorable and easy to use alternative opt out route (such as a website address or telephone number). This alternative has now been removed from the new draft of the Code and marketers must now provide such a "STOP" mechanism without exception. The Code also emphasises the contractual obligations that marketers will be subject to in this regard under the terms of their contracts with the UK mobile network providers following the introduction of the rules to regulate premium rate subscription services and WAP/xHTML services billed using Premium Text.
Furthermore, the MMA had previously considered providing a "Stop" mechanism and the act of unsubscribing recipients from a service where it was their intention to unsubscribe (even if an incorrect unsubscribe mechanism has been used) as 'best practice' whereas they are now considered "obligatory". Marketers should therefore note the change in tone in this section of the Code as it suggests that its provisions will be enforced more forcefully.
The message for marketers
On the whole, the Code has not changed substantially from its previous 2003 draft although marketers should notice the change of tone in some areas where matters of best practice are becoming stronger obligations. The Code acknowledges that new technologies such as Bluetooth require further consideration and more care in the light of marketers' legal obligations as whilst they are an innovative marketing tool they are also currently fraught with legal problems. Marketers therefore need to be fully aware of their legal risk before signing up for such an innovative campaign as law and the regulators will catch up with technology very soon. The MMA have acknowledged this issue but have not suggested solutions to address it so marketers need to devise their marketing campaigns carefully.
Some of the amendments to the Code are also a reminder to marketers that they need to pay attention to the rules set down by the UK mobile operators. The operators have been on the receiving end of many complaints from the public regarding subscription services recently even when the operator is not responsible for the content and therefore they have now sat up and done something about it – marketers would be wise to pay attention.
