ICSTIS and other regulators are anxious to know whether SMS are ‘calls’.
Who: ICSTIS, the Wireless Marketing Association
When: July/August 2001
Malaysian Muslims may be quite clear, courtesy of recent counsel from the religious adviser to the Malaysian government, that they cannot divorce their wives using SMS messages. Wireless marketers, however, feel that they are in a position of much less certainty. Crucial is the question of whether the sending of an SMS message is for legal purposes exactly the same as making a telephone call. If it is, the Data Protection (Privacy and Telecommunications) Regulations come into play. This would mean that random number generators, now outlawed for fax and telephone marketing, would also be legally unacceptable in the UK in the context of SMS. It would also mean that the Telephone Preference Service applied, giving individuals the right to register with the TPS that they did not wish to receive marketing SMS and obliging all SMS marketers to clean their telesales list against that register at regular intervals. ICSTIS is calling for a pronouncement from the Information Commission on the point. Since the IC have always taken the view that e-mails amounted to “calls” for the purposes of the same Regulations (a view not shared by many others) it is perhaps surprising that they should not have been prepared to oblige before now. On the other hand, since the proper interpretation of the Regulations is at the end of the day a matter for the courts, it is difficult to see why a view from the IC determines the issue.
In the meantime, related plans to set up a self regulatory SMS preference service have stalled for lack of funds, while the Wireless Marketing Association (not to be confused with its competitor the Wireless Advertising Association) has announced the introduction of its own consumer complaints procedure for SMS spam. Complaints would come direct to the WMA, who would then investigate and if appropriate work with SMS aggregators such as Mblox to shut down the offending sender’s account. In a related development, the WMA has also announced a tightening of its Code of Practice so as to introduce a ban on members having a premium rate line as their point of customer contact and make opt-in procedures easier to understand.
Why this matters:
SMS has emerged so rapidly that it has caught marketers and regulators by surprise. Apparently the DTI, Oftel and the IC are also working on the “is SMS a “call”” conundrum, and clearly much will flow from clarification on the point. Our own view is that SMS is certainly more likely to be regarded as a “call” than an e-mail, but full resolution may have to await one of the various relevant EU “harmonising” measures on their way.