Marketing using Bluetooth technology is not governed by email marketing laws, says the ICO, thus U turning from the position it took in its first Guidance on the Privacy and Electronic (EC Directive) Regulations 2003. But what about the CAP Code and the Data Protection Act 1998? Anna Montes rpts.
Topic: Mobile Marketing
Who: Information Commissioner's Office
When: 11 October 2007
Where: Wilmslow, Cheshire
Law stated as at: 30 October 2007
On 11 October 2007, the Information Commissioner's Office ("ICO") issued a statement confirming that it has amended its guidance on the Privacy and Electronic Communications Regulations 2003 ("PEC Regs") and in particular its approach to marketing messages sent via Bluetooth technology.
ICO enforces the PEC Regs which control the sending of unsolicited marketing messages sent via a "public electronic communications network". Regulation 22 of the PEC Regs applies to the sending of SMS and email messages which are sent over a such a network and ICO has now decided that Bluetooth technology does not fall within the definition of a public electronic communications network and therefore marketing messages sent via Bluetooth are no longer considered to be subject to the PEC Regs.
ICO has amended its guidance on the PEC Regs to retain its reference to WAP messages as constituting "electronic mail" for the purposes of the PEC Regs, but all prior references to Bluetooth messages also being "electronic mail" have been deleted. ICO declares that it made such amendments to its guidance following discussions held with parties including the Department for Business, Enterprise and Regulatory Reform.
Real alternative to SMS
The sending of messages via Bluetooth technology (also referred to as "Bluecasting") is currently considered to be one of the most innovative forms of mobile marketing. It is the use of mobile Bluetooth technology to contact individuals whose mobile handsets are Bluetooth-enabled via a short-range radio frequency. It 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 operational costs associated with SMS or MMS campaigns as a message sent by Bluetooth is a device-to-device message and therefore does not need to be passed through a mobile network.
Care still needed, says ICO
Despite the apparent advantages of Bluetooth messaging, there are many that are also concerned that if this technology is not used properly it can lead to unwelcome spamming activities. Indeed ICO also stressed in its press release statement that although it has now ruled that Bluetooth technology is not covered by the PEC Regs, marketers should nonetheless acknowledge that consumers are increasingly aware of the new methods being used for marketing communications and do not like to receive unsolicited messages and therefore it is good practice for marketers to take the public's concern into account when devising their marketing strategy. ICO therefore urges marketers to consult industry guidelines on good marketing practice when employing Bluetooth technology to distribute their marketing communications. There are also the small matters of the CAP Code of Advertising, Sales Promotion of Direct Marketing and the Data Protection Act 1998, which would be Bluetooth marketers must still consider.
Why this matters:
ICO's decision has prompted fears of a wave of 'Bluetooth spam', sometimes referred to in the industry as "bluejacking". ICO declares that if Bluetooth marketing is to be governed in any other way then this is a matter for Government to decide, not ICO. Will we therefore start to see some bodies lobbying for the stronger regulation of Bluetooth marketing?
Still CAP Code issues
Others will no doubt welcome this news however. The IPA considers ICO's change of mind to be very good news for agencies who want to use Bluetooth technology but also reminds agencies that their campaigns must still comply with the CAP code. This still requires that for "sending marketing communications to mobile devices" the prior consent of consumers is required unless the customer soft opt-in and B2B/business products exceptions apply.
It is also worth noting, since ICO has encouraged marketers to look to industry marketing guidelines, that the DMA's Best Practice guidelines for mobile marketing recommend that Bluetooth marketing is done on a permissions basis.
Background data protection law considerations?
There is also still "background data protection law" to consider. Marketers will still need to ensure that this use of personal data (assuming that the recipient can be identified from the relevant mobile phone number and other information in the possession of the data controller) complies with the "fair and lawful" processing requirements of data protection principle one under the Data Protection Act 1998.