Before it sent unsolicited text messages promoting a new mobile phone, Mobile Upd8 checked with the Information Commissioner on how to do it compliantly. But maybe it didn’t check the CAP Code of Advertising.
Topic: M Commerce
Who: Celltalk Plc t/a Mobile Upd8
Where: The Advertising Standards Authority
When: June 2004
Mobile Upd8 sent text messages promoting Orange colour camera mobiles. The text message stated 'had your mobile 11mths or more? update for free to Orange's latest colour camera mobiles with 2000 free txts per month. Call mobile Upd8 on freefone 0800 839403'.
An individual who received the message complained to the Advertising Standards Authority ("ASA") that it was unsolicited.
In its defence, Celltalk said they had sought advice from the Information Commissioner's Office ("ICO") on the effect of the Privacy and Electronic Communications (EC Directive) Regulations 2003. They said they had been told by the ICO that they could continue using databases compiled before 11 December 2003 even if they had not been compiled on a prior consent basis, provided various other criteria had been met.
Mobile Upd8 gave its assurance that future text messages would give consumers a clear and easy means of opting out of receiving further marketing but it said that to comply with the ASA's request to stop sending unsolicited text messages altogether would have a severe impact on its business and threaten many jobs.
The ASA understood from telephone conversations with the advertisers that the text message had been sent both to existing customers and consumers who had not completed or negotiated a sale but had formed an active relationship with the advertisers, for example through entering competitions.
It also understood that the text message was sent to consumers whose data had been acquired in the course of market research or bought or rented from a third party and as a result of collecting numbers from a database of Orange customers whose numbers were thought to be over 12 months old.
ASA's finding was that Mobile Upd8 had, without having obtained their explicit consent, sent the unsolicited text messages to consumers it had not sold a product to, negotiated a sale with or formed an active relationship with. In these cases the CAP Code was clear, regardless of what effect it might have on the advertiser's business: the explicit prior consent of such consumers was required before sending unsolicited marketing texts to them in the future.
As regards consumers who had formed an active relationship with Mobile Upd8, but not completed or negotiated a sale, they should only be sent one text message asking for permission to use their data. If they did not respond positively to that message they should be regarded as having not given their permission and no more unsolicited marketing texts should be sent.
Why this matters:
It is not clear from the ASA report whether the 'various criteria' stipulated by the ICO its letter to Mobile Upd8 had been met.
Maybe the ASA does not mention this because it is not relevant. The complaint was that the CAP Code of Advertising had been breached, not the Privacy and Electronic Communications (EC Directive) Regulations 2003.
The CAP Code is stricter in this area than the law. It is also being enforced much more rigorously.
It makes it plain that whenever and however a list of mobile numbers was compiled, it cannot be used to send unsolicited marketing messages to any recipient unless that recipient has previously opted in or completed or negotiated a sale with the sender and not opted out.
"Active relationship" test
According to the ASA, a text message can be sent without prior consent to an individual with whom the sender has previously had an "active relationship" which falls short of a sale or negotiations to sell. However this message cannot be for marketing and can only be for the purpose of asking the recipient's permission to use their data in order to send future marketing texts. Such a message can only be sent once and if there is no positive response by which the person opts into receiving future such messages, then no further marketing use can be made of it.