Can Text Message Marketing Avoid Death by Spam?

December 16, 2012

Legal Disclaimer: The law and what is considered best practice for Text Message Marketing varies from country to country. For definitive legal advice, please consult your legal advisor, do you own due diligence, and even it it *is* legal, follow the good practice of the the 2nd link below so that your business’ customer base are happy rather than annoyed and angry!

Having said that, here are useful guidelines applicable to UK businesses seeking to connect with their customers and prospects via Text Messaging.





Q: Is it ok to import mobile details into your Text Messaging System?

A: Yes, as long as the numbers were already obtained as part of a product or service-based transaction.

Q: Are you allowed to import text messages into your Text Messaging System?

A: In the UK, the Privacy & Electronic Communications legislation kicks in.

To summarise: if a business already has their customer’s mobile phone details, then they *can* do the import.

HOWEVER, for best customer relations, you should *require* that they optin to receive any further communications.

See the Resources section above.

For your convenience, here’s the relevant excerpt for the UK market:

ALSO IN A NOTE IN THE FILES SECTION): What is “soft opt-in (Regulation 22(3))?”

What the law states:

You may send or instigate the sending of electronic mail for marketing purposes to an individual subscriber where:

  • you have obtained the contact details of the recipient in the course of a sale or negotiations for the sale of a product or service to that recipient;
  • the direct marketing material you are sending relates to your similar products and services only; and
  • the recipient was given a simple means of refusing (free of charge except for the cost of transmission) the use of their contact details for marketing purposes when those details were initially collected and, if they did not refuse the use of those details, at the time of each subsequent communication.

If you satisfy these criteria, you do not need prior consent to send marketing by electronic mail to individual subscribers.

If you cannot satisfy these criteria, you must not send marketing by electronic mail to individual subscribers without their prior consent.

Q: How does the ICO interpret “in the course of a sale or negotiations for the sale of a product or service”?

A: A sale does not have to be completed for this to apply. It may be difficult to establish when negotiations begin. However, you may continue to market to someone by electronic mail:

  • if they have actively expressed an interest in buying your products and services; and
  • if they have not opted out of further marketing of that product or service or similar products and services when their details were collected (despite being offered the opportunity to do so); and
  • unless and until they opt out of receiving such messages at a later date (despite being offered the opportunity to do so in each communication).

We do not consider that “negotiations for the sale of a product or service” includes the use of cookie technology to identify someone’s area of interest when they are browsing your website. Unless they have expressly communicated their interest to you by, for example, asking for a quote, no “negotiations” can be said to have taken place for the purpose of these Regulations.

As another example, if you are a national retailer and someone emails you asking if you are going to open a branch in their town, the expected response would be “yes” with details, or “no”, perhaps with details of your other stores in that area. This query does not do any of the following:

  • form part of a negotiation for the sale of a product or service;
  • form an invitation to you to send the person further information about your products or services;
  • indicate consent to receive further promotional emails from you.

You could send a person emails promoting your products and services if they:

  • expressly invited you to;
  • consented to your suggestion that you send them promotional emails; or
  • did not object to receiving emails during a sale or negotiations for a sale.

Q: How does the ICO interpret “similar products and services”?

A: We believe the intention of Regulation 22 is to ensure someone does not receive promotional material about products and services they would not reasonably expect to receive.

For example, someone who has shopped online at a supermarket’s website (and has not objected to receiving further email marketing from that supermarket) would expect at some point to receive further emails promoting other goods available at that supermarket.

A recipient can opt out if they think a company has gone beyond the boundaries of what they would reasonably expect that company to do – something most responsible marketers will be keen to avoid.

So for the time being we will focus in particular on failures to comply with opt-out requests. We will continue to monitor how far marketers take account of the reasonable expectations of individual subscribers.

Ken Johnstone

... is an Online Business Advisor and Media Producer with international experience. As well as his own projects, Ken works with selected Business Owners who aim to significantly grow their profits through their Digital Marketing Strategies. NEW: Proprietary "Funnel Mapping Software" for clarity in communicating business strategies.


Related Posts

FB Live Test

Facebook Live Stream iFrame Embed Code goes here. *****Must be in Text mode.***** Note: Beware of FB embed code from pre-live post - displays some very undesirable “other live streams to watch”. Use the embed tool here instead:...

Let’s Work Together

We’d love to hear about your next online business project. Please use the contact form here ====>>>

Tell us about your project...

10 + 8 =