Increasing unsolicited marketing SMS has put the spotlight on the as yet under-used statutory Telephone Preference Service. But is the TPS relevant to this particular marketing medium?
Who: The Independent Committee for the Supervision of Standards of Telephone Information Services ("ICSTIS") and the Telephone Preference Service ("TPS")
When: December 2002
The premium rate telephone service regulator ICSTIS and the statutory telephone marketing preference service the "Telephone Preference Service" reminded all SMS marketing companies of their legal obligation to clean their lists against the TPS database at least once a month. All consumers who registered with the TPS expected protection from SMS but would not receive it unless the industry screened their data against the TPS file, Tessa Kelly, director of compliance operations at the TPS, was quoted as saying.
The legal obligation they are talking about here arises from the 1999 Telecommunications (Data Protection & Privacy) Regulations.
As previously reported on marketinglaw, an aspect of those regulations which does not appear to have been pursued by the regulators is their ability to be construed so as to mean that "unsolicited" marketing SMS is simply not permissible in the UK, regardless of whether an individual has registered with the telephone preference service. By this we mean that under the 1999 Regulations the use of automated calling systems for marketing purposes is only permissible on an "opt in" basis, in other words only provided that the recipient has previously requested that those calls be made, thus rendering any subsequent marketing communication "solicited".
In view of the fact that so far as marketinglaw is aware, most if not all marketing SMS is sent by automated dialling systems, this "opt in" regime would seem to apply to marketing SMS so that any unsolicited marketing SMS message is by definition illegal.
Nevertheless, if the industry is not prepared to operate on this basis and the regulators do not seem to have any appetite for enforcing this particular interpretation of the Regulations, it would seem to be a fair commercial risk for SMS service providers to promote their services on an "opt out" rather than "opt in" basis, provided of course they check with the Telephone Preference Service each month for those who have opted out of receiving such messages and to update their lists accordingly.