Starting an SMS marketing campaign can be a daunting task. Gathering explicit opt ins can take time, as you need to make an investment in advertising. So why not just get a jumpstart and buy a list of mobile numbers from an organisation that already has the opt ins?
You could do that, but it’s probably harder than just getting people to opt in on their own.
There have been some changes, or updates, to the rules and regulations for direct marketing using electronic media. Organisations and businesses can still use a “soft” opt in if they choose to with their own customers. But when people opt in to accept third party marketing (which would be you if you bought a list from someone), they need to be expressly told who will be marketing to them (by name or specific category) before they sign up.
It’s no longer ok to just use the phrase “third party retail partners” or the like. The regulations also say that only the first third party can use this indirect consent. So you can’t buy a list from someone who bought a list. If you use such a list, you will be in violation of the regulations.
It's Already Happened
The new rules have already been used by the Information Commissioner’s Office (ICO) in one high profile case. Better for Country Ltd, the organisation behind the Leave.EU campaign, sent 501,135 SMS messages to people on a list it received “from a third party supplier” according to the ICO.
The messages were considered direct marketing because they were promoting a cause and asking people to take action. Here is the text of one message from the ICO documents:
“Hello, it’s Richard from The Know. Text YES to support our fight to leave the EU or see http://goo.gl/sOS9DU for more info. Reply STOP to opt-out”.
Over the course of the six-month campaign, the ICO received 134 complaints to their 7726 service (you can forward an SMS message to the ICO with the keyword SPAM added using the shortcode 7726 to report it as spam). Another six complaints were made directly to the commissioner.
After an investigation the ICO found that Better for Country did not have permission to send the SMS messages. The people had agreed to a more general opt in with a clause about messages from third parties, but the permission was not explicit enough to cover the messages the Leave.EU campaign sent.
Even though the Commissioner found the company hadn’t deliberately tried to violate the electronic communications regulations, they were responsible for it. In the end, Better for Country was fined £50,000.
What To Do Instead
This is just one example of what can go wrong by trying to take the easy route out by buying a list. Even though the Leave.EU organisation tried to ensure they did everything right (and if you read the full report from the ICO you’ll see they really thought they were complying with the regulations), they still ended up in trouble.
So while running an opt in campaign seems like a lot of work, it’s easier than trying to understand the legal implications of a third party list. There are still regulations for building your own list, but they are much easier to understand.
And in light of the new changes, the ICO has published two new documents. One is a guide specifically for political campaigning. Non-profits and political causes are required to follow the same rules as everyone else. But because of the activities of some organisations, the ICO created the “Guidance on political campaigning” to make the requirements placed on those groups clear.
For everyone else looking to use SMS marketing, they’ve provided the “Direct Marketing” document which outlines everything you need to know to stay compliant with privacy and communications regulations. You can download either document using the links provided or find them on the ICO website.
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