The Privacy and Electronic Communications Regulations 2003 apply to text marketing including voice, sound or images. In order to proceed, you must have the consent of the recipient to send marketing information to them. This can either be in the form of a specific request (such as where the message is actively invited by the recipient) or a general consent (where the recipient has previously given their permission to receive marketing by electronic means).
The individual must be given the opportunity to opt-out of receiving the messages every time, and this must be in a reasonably convenient form. This is obviously difficult with SMS, given the limited space in a text message.
However, this does not mean that you can exclude information about opting out of receiving such messages.
Guidance from the Information Commissioner's Office suggests that an appropriate opt-out message would be one that includes a valid short code as an address, makes clear the identity of the sender, and does not incur a premium charge. Here is an example: "ABltd2STOPMSGSTXT'STOP'TO12345."
Q: We understand that there may be a legal loophole when it comes to Bluetooth marketing. If so, does this mean we can freely market using this technique?
Bluetooth is a standard that lets devices share data wirelessly. Most Bluetooth-enabled mobile phones can only detect other Bluetooth-enabled devices within a few square metres, but some devices can broadcast to devices up to 100 metres away.
The technology presents an obvious marketing opportunity: advertising hoardings and premises can transmit messages using Bluetooth and all enabled devices within range will receive the message.
Until October last year, there was confusion over how to do that in a way that complies with the Privacy and Electronic Communications Regulations (PECR), as guidance from the Information Commissioner's Office suggested that such marketing would fall foul of the regulation.
However, the ICO has concluded that PECR applies only to messages sent over a public electronic communications network, and as Bluetooth messages are not broadcast in this way, they comply with PECR.
To date, neither the Government nor the European Commission has produced any amendments to the regulation that would affect this position.
Therefore, for the time being at least, Bluetooth marketing would appear to be acceptable. But from a commercial perspective, our advice to marketers is be creative with how you use this technology, as people may get annoyed if a shop they pass every day on their way to work constantly broadcasts an ad to their handset.
Victoria Southern is a solicitor with Pinsent Masons