|
|
Submitted by on Mon, 21 Jul 2003 14:36 |
 This article is to share the answers to some of the more frequent questions we get asked
about marketing via mobile text messages
By Glyn Morgan at Taylor Wessing www.taylorwessing.com
Mktng via txt – most frequent questions
This article is to share the answers to some of the more frequent questions we get asked
about marketing via mobile text messages
By Glyn Morgan at Taylor Wessing www.taylorwessing.com
Now that draft regulations have been released that are intended (once finalised) to put into
effect in UK the EC Privacy in Electronic Communications Directive, we have been getting
a lot of queries about how the new rules will affect marketing via text messages sent to mobile
phones (or SMS, if you prefer to be technical). What follows is a set of "frequently asked
questions" on this subject, together with the answers. The answers are based on the latest
draft of the regulations (published June 2003), so the guidance given may change when the
regulations are finalised in August 2003.
The most important thing to remember
- People hate getting "spam" SMS messages. If you send SMS messages to people who
haven't asked for them, the most likely result is that they will not like it. This is generally going
to be counter-productive if your aim is to market to them. It is also likely to damage perception
of your brand. So, don't send SMS messages to people who do not know who you are
and who have not agreed to you sending them.
- Using your common sense when marketing via SMS is not a legal requirement, but you may
find it a useful tool when trying to promote your brand, your products or your services while
trying to avoid customer complaints and lurid tabloid headlines.
Who can I send SMS marketing messages to?
Rule number one is that you can never send SMS messages for marketing purposes to
anyone who has previously told you that they do not want to receive them.
Subject to rule number one, you can send SMS messages for marketing purposes to:
- An individual who has previously agreed to you doing so. In other words, you need their
consent before you send any SMS messages to them. How you go about getting consent
is explained in more detail below but, in summary, it has to be a positive, "opt-in" consent.
- An individual who has previously bought something from you or has negotiated with you in
relation to a potential sale. In this case, you can send SMS messages to such a person
provided you are marketing something that is similar to whatever the individual has bought
from you, or negotiated about with you, before. So, if you have sold them books, you
cannot send them SMS messages trying to market fridges. On the other hand, you could
probably send them an SMS marketing CDs.
Do not forget rule number one – the minute someone says to you that they do not want to
receive any more messages then you have to stop. In that connection, every time you send
someone a message you have to give them an opportunity to opt out of getting any more
(there is further detail about this, below)
How do I get consent from individuals?
-
Rule number one is that any consent has to be a positive one. For example, it is no good if
you say to someone:
I would like to send you information by SMS. Please tick this box if you do not want me to do so
Instead, you have to do it the other way around:
I would like to send you information by SMS. Please tick this box if you
are happy for me to do so
- Rule number two is that the consent has to be informed. That is, the individual giving the
consent has to know exactly what it is that he or she is consenting to. This means that, before
you get their consent, you have to tell them or give them easy access to full information on
everything you intend to do with their personal data (in this case, probably mainly their mobile
phone number). This is covered in more detail, below.
- Rule number three is that the consent has to be freely given. This means that it has to be
revocable at any time (and they have to have a means of revoking it). It also means that you
cannot put any pressure on them to give their consent (although you are allowed to offer them
an incentive to do so).
- Rule number four is that, as a general rule, a child under the age of 12 cannot give you an
effective consent themselves and you need their parents' consent as well. In some
circumstances you may need a parent's consent even if the child is older than 12.
Therefore, if you are targeting children (which means anyone aged less than 18) you should
always get some advice first.
Subject to rules one to four, there is no set way of getting consent, provided it is clear from the
way you do it that the individual is in fact giving you consent. Various ways have been used
successfully to get consent from individuals to use their details for marketing purposes and
how you do so will depend on how you go about collecting their details in the first place.
For example you get each individual:
to fill in a form and send it to you.
to send a text to you
to register via a web site.
All of these are fine as long as you obey the three rules referred to above. So, if you want
them to register by text, you could hand out cards to people explaining clearly:
who you are, what your address is and how you can be contacted;
why you want their mobile number;
what you are going to send them texts about; and
anything else you want to do with their data.
You tell them that, if they agree to this, to send you a text that says "SUBSCRIBE". You also
tell them at the same time that, if they change their mind, they should (for example) just send a
text to the same number that says "UNSUBSCRIBE".
Generally, any consent given is only likely to apply to a specific promotion and you should
therefore treat it as such and get a fresh consent for each new promotion. This may not be
true in some circumstances (for example, where people sign up to receive regular, ongoing
SMS updates relating to a particular subject), but you should be very careful about re-using for
a new promotion mobile numbers given to you for an earlier promotion.
What sort of information do I have to give people?
You need to tell people:
- Who you are
- Where you are (this is even more important if you are not in UK)
- How to contact you
- What information you want from them
- What you want to you use it for
- Who (if anyone) you are going to disclose or give their information to
- What you want them to consent to
You should give individuals information both because you are required to do so by law and
also because the more transparent you are about who you are and what you are going to use
individuals' details for, the less likely it is that you are going get complaints. Do not forget that
enforcement of the rules in this area is mostly complaint driven. Any complaints are likely to
result in an investigation. Everything you can do to try and make sure that recipients of your
SMS messages do not complain is likely to help. Clearly, there is fairly limited scope to set out
this sort of detail within an SMS communication. An alternative is to give people a document
(such as a flyer) with the information on it, or to give them the URL of a web site where the
information is set out in full.
Can I market to any existing contacts databases I have?
Not unless you have satisfied the rules referred to earlier in relation to each person on the
database. This sometimes means that to use an existing database for the purposes of
marketing via SMS you need to contact everyone on the database first and ask them for their
consent. This may not apply to a database of existing customers, but you should still be
careful about using your database for that purpose. Do not just assume that you can send
marketing messages via SMS to everyone on your existing database. Check first.
Do I have to provide any other information on an ongoing basis?
Yes. Each and every time you send someone a message, you have to provide the recipient
with certain information. In the context of SMS, this may sometimes be a bit tricky because of
the 160-character message limit. However, you still have to do it.
Additional information you must provide:
- Your identity as sender.
- Your contact details.
- How to stop you sending any more messages.
You may need to do some of this by including in the message a URL of a web site (or WAP
site) with the relevant information. However, your identity should be obvious from the
message itself (and should not be disguised) and, if at all possible, you should include an opt-
out message in the communication (for example – "txt STOP 2 unsubscribe"
You may also need to provide other information depending on what sort of message you are
sending. For example, if you are contacting individuals in relation to a competition that they
can participate in, you are going to need to provide them with details of where they can view
the rules of that competition.
If someone wants to opt-out, how long do I have to remove them off my list?
Best practice dictates that you should remove an individual from your contacts database
immediately on receipt of a request to unsubscribe. However, depending on the
circumstances this may not always be possible and guidance in the area has taken a
pragmatic approach. For example, the IPA Guidelines provide that a request to unsubscribe
should be carried out with immediate effect if the instruction is received via SMS, or
alternatively within no more than 14 days if the instruction is received via any other means.
The key thing is to make sure that no further communications are sent out in the intervening
period – try to stop any in the 'pipeline'. If this is not possible then you should warn the
individual when they unsubscribe.
How much information can I collect off people when I am collecting their details for marketing?
You should only collect information you need (rather than want) to send individuals marketing messages (i.e. name, mobile number).
You may include other questions as part of the information collection that will enable you to
target your marketing more effectively, provided that it is made clear that responding to such
extra questions is not compulsory.
Do not try to collect for marketing purposes any information about anyone's:
Sex life
Religious beliefs
Health
Criminal convictions or charges
This is called "sensitive personal data", and you cannot have it without a very good reason
indeed and even then usually only if the individual concerned has agreed that you can have it
for that reason.
Are there any limitations on the kind of content I can include in a message?
The content of any advertisement, direct marketing or promotional message should be
considered in the light of your target audience and must comply with the British Code of
Advertising, Sales Promotion and Direct Marketing ensuring, in particular, that all
communications are legal, decent, honest and truthful.
The Code can be found at www.cap.org.uk.
Going back to the common sense point, tailor the content to the target audience. For example,
it is probably not a good idea to send texts about breast enlargements to 14-year old girls (this
was a real-life proposal that we were asked to advise about).
I want to run a viral campaign – are there any issues I should think about?
Viral campaigns may seem like a cost effective way of getting your message across to a wide
audience but require careful consideration to avoid various pitfalls that may result in you doing
more harm than good to your brand.
Rule number one is to get some advice before you plan the campaign. Do not spend thousands of pounds putting together a viral campaign and then go and ask a lawyer if it is OK about five minutes before you are due to launch. If you do that, then do not be surprised if you are told that you have wasted your money because what you propose to do is illegal. You need to structure a viral campaign around the rules, because the rules cannot be bent to fit your campaign.
Subject to rule number one, you might like to consider the following:
- Start by sending messages to people who have opted in to receiving texts from you. This
means that, to run a viral campaign, you need to design a way of getting together an initial
database of opted-in individuals who have agreed to receive texts from you.
- Try to avoid texting your initial recipients asking them to send you details of their friends so
that you can then send texts to those friends yourself. This will inevitably mean that you
will be texting people who have not consented to you doing so and who are unlikely to be
existing customers.
- Instead, send texts to your initial recipients and then invite those recipients to forward your
text to their friends. The text can then invite recipients to contact you direct, and you can
then ask those people that do so for their consent to you sending further texts direct to
them. This way, you build up your database of willing opted-in recipients.
If I purchase a list from a third party, can I start using it straight away?
The draft regulations have thrown the legality of using third party lists in doubt by stating that
the sender of a marketing communication must have permission from the recipient to send
SMS messages to them.
As it currently stands this would seem to prohibit the use of bought-in lists for the purposes of
SMS marketing and this is something that will hopefully be clarified in the final version of the
regulations.
Are there any restrictions on when I can send messages?
Current guidance suggests that commercial communications should not be sent to individuals
between the hours of 9pm and 8am Monday to Friday and 9pm to 9am on weekends, unless
an express invitation is received.
You should also bear in mind that messages sent on a Sunday, national or religious holiday
may be regarded as unacceptable by some individuals.
Can I send marketing messages to my contacts database on behalf of third parties?
No, not unless you have specific permission from each individual concerned. Consent from an
individual to receive marketing about your products and services does not constitute consent
to receive marketing messages about those of third parties.
Therefore when you initially collect personal details from individuals you should think carefully
about what sort of purposes you are going to want to use those details for, so you can request
permission to do so. For example, in the future you may wish to market your products and
services to them, those of group companies, and selected products and services of third
parties, and in each case you will need to get separate consent from the individual for each of
these purposes.
Are there special rules applying to reverse billed SMS?
If anyone has to pay for sending texts to you, then they need to know. You need to tell them
even if texts are going to be charged at whatever their normal rate is.
If you are using reverse billed premium rate SMS then you are also going to have to comply
with the provisions of the Independent Committee for the Supervision of Standards of
Telephone Information Services (ICSTIS). See: http://www.icstis.org.uk
The health warning
The above are just some of the questions we have been asked – the most frequent ones. This
note is not a comprehensive summary of absolutely everything you need to know before marketing
via SMS and it should not be used as such. This note gives general guidance only and should not
be used as a substitute for specific legal advice. If you have any specific queries in relation to this
or any related issues then please contact Glyn Morgan (g.morgan@taylorwessing.com) or Alexis
Giles (a.giles@taylorwessing.com).
Glyn Morgan at Taylor Wessing:
E-mail: g.morgan@taylorwessing.com
Direct tel: 020 7300 4652
© Taylor Wessing 2003
|
