Osborne Clarke’s Anna Montes sets herself some frequently asked questions on mobile marketing compliance, including a knotty question about mobile marketing to kids, then answers them. As a former in-house lawyer for Vodafone, she should know. Check it out at
Frequently Asked Questions relating to mobile marketing
Anna Montes
Osborne Clarke
June 2005
How is mobile marketing regulated?
At present there is no dedicated UK legislation that specifically addresses the issue of marketing via the use of mobile phones. However, legislation that is applicable to mobile marketing includes the Privacy and Electronic Communications (EC Directive) Regulations 2003 ("Privacy Regulations") (which contains specific provisions focusing on the processing of location data and the use for direct marketing purposes of electronic mail, sms/text, live telephone calls and calls by which recorded messages are transmitted using automated calling systems); the E-commerce Regulations 2002 and all current data protection legislation.
Under the Privacy Regulations, unsolicited SMS marketing material should therefore not be sent unless the recipient has given prior consent to such communications or the 'soft opt in' exemption applies. Furthermore, each communication must not disguise the identity of the sender. It must also provide a valid address to which the recipient can send an opt-out request from further marketing communications. However, when formulating your mobile marketing campaigns, it is worth considering your target audience as the Privacy Regulations allow unsolicited direct marketing SMS to "corporate subscribers" (to employees of limited companies on their business mobile telephone paid for by their employer) on an opt out basis.
If you wish to rely on the "soft opt-in" exception to avoid gaining the express consent of individual subscribers to mobile marketing, you must ensure you meet the criteria for the exception and therefore that you have: (a) obtained the contact details of the recipient in the course of the sale, or negotiations for the sale, of a product or service to that recipient; (b) carried out the direct marketing in respect of its similar goods and services only; and (c) given the recipient a simple means, without charge, at the time of initial collection of the data to refuse (or opt out of) the use of his contact details for direct marketing purposes. It must also be ensured that in each subsequent message to that individual you provide them with the right to opt out of future direct marketing using that channel.
As regards unsolicited live telephone calls for direct marketing purposes to mobiles, the Privacy Regulations require that no such calls are made to any number that is registered with any of the statutory Telephone Preference Services, whilst calls to mobiles using automated diallers and sending pre-recorded messages may only be sent on a prior opt in basis.
Finally under the Privacy Regulations, it is clear from the definition of "electronic mail" that the "opt in" and "soft opt in" regime will also apply to unsolicited live marketing calls to mobile phones where the caller is unable to speak to the recipient and leaves a recorded message.
In addition to this legislation, a number of Associations such as the Mobile Marketing Association, DMA and Wireless Marketing Association have also created codes of practice and in some cases best practice guidelines. Furthermore, the "CAP" British Code of Advertising, Sales Promotion and Direct Marketing applies to both email and SMS marketing sent to individuals in their private capacity even if the communication is sent to the individual's business email address or mobile phone number. The Code follows the Privacy Regulations by requiring that marketing sms/text is only sent to individual subscribers with their prior explicit consent unless "customer soft opt in" applies. For such messages to "corporate subscribers" the CAP Code goes further than the law by requiring that the text/sms may only be sent on an opt out basis if the message is promoting "business products."
Is there any text I should include in a mobile marketing message?
As space is limited to 160 characters as far as SMS marketing is concerned, use of abbreviations is permitted and it is also possible in some circumstances to refer to a website where consumers can obtain additional applicable conditions and information. The Mobile Marketing Association code of conduct for mobile marketing takes into account the applicable legislation and suggests each mobile marketing message should: (a) be clearly identifiable as a mobile marketing communication; (b) clearly identify the sender; (c) provide a valid suppression address so that recipients can unsubscribe from marketing communications; (d) include a clear identification of any promotional offers together with an explanation of any conditions; and (e) include a means of accessing any additional information, terms and conditions, and any applicable privacy policy in the event that the communication is being used to collect personal details (such as by giving a website reference).
How should I give people the option to unsubscribe from my marketing messages?
The Information Commissioner permits the use of short codes as a valid address provided to consumers for marketing communication opt-out requests. It is best practice to enable consumers to object to future direct marketing with the minimum effort and cost possible. If short codes are being used for this purpose then ensure that the shortcode provided does not incur a premium rate charge for the consumer and that it is valid at the time the SMS is sent. The recommended text for use in relation to shortcode unsubscribe messages is:
"(Name of sender) – 2STOPMSGSTXT'STOP'TO (add applicable 5 digit short code)".
Can I send mobile marketing messages to children?
Guidance for mobile marketers on the impact of the "CAP" British Code of Advertising, Sales Promotion and Direct Marketing on mobile marketing states that verifiable and explicit consent should be obtained from a parent or guardian before there is any communication with children via mobiles. The CAP Code defines a child as anyone under 16.
However in terms of collecting children's mobile telephone numbers in the first place, the DMA Direct Marketing Code of Practice (binding on DMA members) states that if capturing that data is for the purpose of targeted marketing, SMS or other types of communications to mobile phones of children, then it is only for under 14s that prior, verifiable and explicit consent of a parent/guardian is needed.
Not to be outdone, the Information Commissioner's Office ("ICO") indicates yet another children's age below which "explicit and verifiable consent" of a parent or guardian is needed before capturing children's data including mobile numbers for marketing use.
The ICO confirms that the Data Protection Act 1998 does not lay down a precise age at which a child can act in its own right and give valid consent to its data being used for marketing and the ICO says unhelpfully that it does not consider it valid to do so, much depending on the capacity of the child and the complexity of the proposition being put to the child. However it then semi contradicts this by saying that "as a general rule," prior verifiable explicit consent from the parent or guardian should be obtained for under 12s."
How do mobile marketers work with this frankly ridiculous inconsistency?
Clearly the failsafe approach, bearing in mind that in the current climate the CAP Code is the most enforced body of rules, is to follow the CAP Code and assume that explicit, verifiable parental consent is obtained before sending any marketing communication to a mobile telephone of a child under 16.
How do you get such consent? The ICO says that it will not usually be sufficient to simply ask children to confirm that their parents have agreed by means of a mouse click. "It will in all likelihood" the ICO continues "be necessary to revert to postal communication."
Marketers should also ensure that (a) children are provided with a statement informing them of the requirement for parental consent at the point that any personal information in requested; (b) any such statement is clear, prominent and written in a language a child can understand; and (c) that it clearly explains the intended purposes for which data is collected and also how consent may be given by parents/guardians.
If use of premium rate telephone lines is contemplated with children in mind, reference should be made to the ICSTIS Code of Practice, which focuses its attention on under 16s-so there's some consistency here with the CAP Code at least!
Can I make use of premium rate numbers when mobile marketing?
You must comply with the ICSTIS Code of Conduct so far as any premium rate numbers are concerned and this means that sufficient information about call charges or service rates must be given to recipients of messages. The "CAP" British Code of Advertising, Direct Marketing and Sales Promotions guidance also makes it clear that the ICSTIS Code of Practice must be complied with and that the code covers mobile messages that are both sent and received by the mobile marketer. It must therefore be ensured that consumers opting-out of future direct marketing must not be charged for exercising this right at a premium rate and where the only method available for consumers to enter a prize draw is via a mobile, they must not be charged at a premium rate for this.
If you wish to discuss any aspect of mobile marketing in more detail, contact Anna Montes at anna.montes@osborneclarke.com.
