In the Mobile Marketing Association’s new revised Code, backed by a “three strikes and you’re out” enforcement procedure, text marketing gets tighter controls, but what about the numerous laws already applicable in this area?
Who: The Mobile Marketing Association
When: August 2002
Europe's largest industrial body for the mobile marketing sector, the Mobile Marketing Association, launched its revised Code, backed up by a "3 strikes and you're out" enforcement procedure. The Code contains a number of significant new provisions, many of them targeted at unsolicited "junk" text messages and focussing on establishing a strictly "opt-in" regime, although this is of course the position under existing UK law anyway for commercial texting.
Perhaps most important of all, the Code creates a new entity called a "Permission Holder". This is defined as a firm that generates a list of mobile phone numbers for marketing purposes which is for use either by itself or by others to whom it supplies the list. For the first time under the MMA Code, whenever marketing material is sent to a mobile phone and the advertiser is not using a list of telephone numbers which it has generated itself, the name of the entity which did supply those numbers and/or contact details for it, must be clearly displayed within the communication. The Code adds that the provider of the numbers in that context (or "Permission Holder") must be reasonably easy to contact, for instance through an interactive form on a website or a phone number which is not charged at a premium rate.
Permission Holders are also told that it is considered best practice to periodically ask consumers whether they wish to opt out of receiving future communications to their mobiles. Also, where a promoter is using mobile numbers which it has not generated itself, it must "clean" its list of those numbers against the mobile numbers in the Telephone Preference Service every 28 days. Again, this simply reinforces the legal requirements in this area, but is none the worse for that.
As regards the disclosure to be given to individuals at the point where they are being invited to subscribe to a mobile service, Permission Holders must stipulate what categories of third party businesses subscriber data may be shared with. Although the Code then goes on to give supposed examples of the disclosures that should be given here, the examples cited are of a different type of information, namely the use to which the data is going to be put rather than the businesses with which it is going to be shared. A disclosure should still be given none the less as to whether for example a subscriber's data will be held/used only for the purposes of a particular campaign, or also for future campaigns from that promoter of any type, or alternatively for future campaigns only of that particular type. The Code goes on to assert here that consumers, having given permission, should not be sent messages that they would not reasonably expect to receive.
In a peer to peer context, where mobile phone owners are asked to provide details of a friend ("the referred party") who they think would like to receiving marketing "texts", the referred party will not be considered to have opted in to receiving future marketing messages. The promoter who has obtained the personal details of the referred party, however, will have the right to approach that party once within 48 hours of the end of the campaign to obtain express consent to the receipt of future marketing messages. Here, referred parties also have the right to find out who referred them to the promoter, who can then identify the referrer by either a name or a mobile phone number. Although the Code does not go on to say this, clearly in this context any individual who is being encouraged by a promoter to give the promoter details of another individual should be told that they may be identified to that individual.
Where individuals have interacted with the promotion via text messaging but have not given express consent to receiving future marketing messages, the Code allows promoters to contact those consumers just once within 24 hours after the end of the campaign in order to obtain such express consent. What the Code does not go on to say is that the making of this contact may itself not be compliant with relevant data privacy regulations if a suitable disclosure has not been made to the individual at the time that he or she first interacted with the promoter via text.
Why this matters:
As concern grows over "junk" text messaging for marketing purposes, it is clearly important for the industry to demonstrate an ability to regulate itself. Future editions of this Code might benefit, however, from a clear indication as to where and how the Code interfaces with the relevant laws and regulations applicable in this area, which are now quite extensive. A related point is that looking at the Code as it stands, MMA members and other M-Commerce operators should not assume that compliance with the letter of this Code will keep them 100% legally compliant, and separate advice should be taken as appropriate.