A: The Lib Dems were served an enforcement notice by the Information Commissioner's Office for sending recorded telephone messages featuring their leader Nick Clegg. The ICO said the party was in breach of the Privacy and Electronic Communications Regulations because no prior consent had been given to receive such calls.
The calls prompted recipients to respond to questions by keying in numbers on their phone. The Lib Dems insisted this was market research and so didn't need prior permission.
There is no clear definition in UK law to say what is a marketing message and what is a service or research message. There is no case law on this subject, meaning there is no precedent to set the bar for this type of complaint.
The Lib Dems have continued to defend their actions, however, so if the case continues, we may see a precedent set.
This would go some way to offering marketers guidelines when contacting consumers with the aim of a service message.
Q: My company has had a complaint from a consumer to whom we sent a marketing text message, saying that they'd never given their permission to be marketed via mobile. What is our defence?
A: Generally speaking, the CAP Code requires marketers to have "explicit consent", which is sometimes called opt-in consent, to send marketing text messages to consumers.
This can present a problem for marketers when they buy mobile phone data from a third party, as proved the case in 2003 when Carphone Warehouse bought a list from a lifestyle data supplier whose survey had featured a request for mobile phone numbers.
The data collectors did not provide a tick-box that stated the respondent gave explicit consent, but instead said that some firms might send offers via mobile phone.
Carphone Warehouse used the data to do a test campaign and was reported to the Advertising Standards Authority (ASA) by one recipient.
The phone retailer argued that the man who complained had given permission for his details to be used.
The ASA initially considered explicit consent to be absent and so upheld the complaint against Carphone Warehouse.
However, in 2004, Carphone Warehouse successfully argued that people completing the lifestyle survey would not have given their mobile phone number unless they were willing to receive marketing promotions.
The ASA revised its 2003 decision in favour of Carphone Warehouse, ruling that customers who filled in their mobile phone number would have been aware that in doing so, they were likely to receive offers by text message. Therefore, the data collectors had obtained explicit consent to send offers on mobile phones.