The CAP Code requires explicit consent before sending unsolicited marketing messages by SMS. A recent decision in favour of Carphone Warehouse gives the green light to one way of getting that consent.
Who: The Carphone Warehouse Limited
Where: The Advertising Standards Authority
When: March 2004
Marketers have come out on top in the first real test case before the Advertising Standards Authority ("ASA") dealing with the question of "explicit consent" for unsolicited marketing messages sent by text.
The CAP Code of advertising, direct marketing and sales promotion, enforced by the ASA, requires that marketing text messages can only be sent with the prior "explicit consent" of the recipient.
This is slightly different to the law on the subject, which is contained in the Privacy and Electronic Communications (EC Directive) Regulations 2003. Regulation 22 (2) requires that a person shall neither transmit nor instigate the transmission of unsolicited [direct marketing text messages] unless the recipient has previously notified the sender that he consents for the time being to such communications being sent, by, or at the instigation of, the sender. However, in this case, the law was not in issue since the complaint in question had been made to the ASA.
The text message in focus was promoting a free handset offer from Carphone Warehouse Limited. It had been sent by an external list provider ("ELP") on Carphone Warehouse's behalf. The complainant objected that the text had been sent without his consent.
Recipient mobile phone number from survey
The records showed that the ELP had obtained the complainant's mobile phone number when the complainant filled out one of the ELP's survey forms. The primary explicit purpose of that survey was ostensibly to collect respondents' opinions about the goods and services provided by retailers and not to collate a mailing list.
However, it was quite clear from the survey form that it was not compulsory for respondents to supply their mobile phone number. It was also clearly stated alongside the space for the number to be inserted that "Some reputable companies may prefer to communicate offers to you on your mobile phone". Against this, there was no tick box for the respondents to opt out of this happening, and this may have been one of the reasons why, at first instance, the ASA upheld the complaint in this regard.
However, a review of the matter had been sought by Carphone Warehouse and the ELP and as a result of the review, the ASA changed its view.
Notwithstanding that the survey was primarily to collect opinions about retailers' goods and services, and despite the fact that there was no opt out box, there was no escaping the fact that, on account of the clear wording against the space for the mobile phone number to be inserted, those who put their number in would have been clear that in doing so, they made it likely that they would receive third party promotional messages on their mobile.
In the circumstances, the ASA, on review, decided that explicit consent had been given and rejected this complaint, thus effectively giving its blessing to the wording and methodology used for obtaining opt in consent in this case.
Why this matters:
It is interesting to note that the message which caused the problem in this case was not in fact within the precise terms of the disclosure given at the point of data capture.
This referred to the sending of marketing messages by third parties, in other words, by parties other than the ELP. In this case, the message had in fact been sent by the ELP, albeit on behalf of Carphone Warehouse. This meant that to be absolutely clear as to the future use of the number being supplied, the adjacent disclosure should have extended to the sending of marketing messages by the ELP on behalf of third parties about the third parties' products.
Having said this, the ASA has clearly decided to take a broad brush view and determined that the "explicit consent" which was given by the positive act of writing down the digits of the mobile telephone number against the disclosure was wide enough to encompass the communication complained of in this case.
But was it legally compliant?
Would the message have been legally compliant as well?
The question to ask here is whether, by writing down the mobile telephone number against the disclosure wording used, the complainant was effectively "notifying" the entity that ultimately sent the message complained of (the ELP), that he consented for the time being to such communications being sent by or at the instigation of the ELP.
The answer is that if the Information Commissioner's office had been inclined to take a very restrictive and literal view of the regulations, the decision might go against Carphone Warehouse. This would be because the disclosure only allowed the ELP to arrange for "reputable third parties" to send texts direct to the survey respondents. In this case, the ELP was sending messages itself, on behalf of companies with whom it had entered into suitable contractual arrangements, something which the disclosure did not cover.
However, it is quite clear from all the pronouncements from the Information Commissioner's Office to date that they are prepared to take a flexible view on the "notification of consent" requirements of the regulations and we imagine that they would not currently be inclined to take enforcement activity in this sort of case.