Businesses large and small should take SMS direct marketing seriously. When it is executed properly, it is a hugely effective and successful means of building customer loyalty and improving sales. But in any industry, there are always rogue operators looking to make a fast buck and who choose to operate on the edge of the law or on the wrong side entirely. Even genuine and honest marketing companies can suffer damage to reputation or even break the law through simply lacking knowledge or not double-checking before releasing campaigns. While there are many areas of law covering all marketing mediums, the majority of complaints involving direct marketing via SMS messaging are about spam messages and harassment. So what are the definitions of spamming and harassment, what is the current UK law and how can mistakes be avoided?
Hands up if you have ever had an unsolicited text about PPI or your ‘recent car accident’ from a company you have never heard of or agreed to deal with? Did you respond? Not likely. The majority of recipients are irritated by such messages and immediately distrust the companies behind them. These are spam messages and they often flout the laws regarding how businesses can use customer personal data and ignore the rules regarding obtaining customer consent for such marketing. Not to mention they alienate many potential customers from the start which is definitely not in any handbook for good marketing practice.
In the UK, there are at least two separate pieces of legislation which cover this area – the Data Protection Act 1998 which is there to ensure personal details are processed fairly, and the Privacy and Electronic Communications Regulations 2003 which require consent to be given freely and specifically. These laws are enforced by an independent body called the Information Commissioner’s Office (ICO).
In one month alone, March 2017, the ICO issued fines totalling £600,000 to several companies for sending spam texts, emails and phone calls. This included one Welsh business which was fined £140,000 for sending 4.4 million marketing text messages for which they did not have the consent of the recipients. The firm’s defence argument was that everyone’s details had been taken from their competition website and that every person was required to agree to marketing as part of the conditions for entering the competitions. The ICO ruled that this was not proper consent.
For some examples of just how seriously the issue is taken and the true cost to companies who get it wrong, have a browse through the reports available on the ICO’s website.
So what is proper consent in electronic marketing? Unfortunately, there is not a definitive or quick answer as that would be somewhat oversimplifying a detailed legal framework but there are some key general points to be aware of:
1.You must not send electronic mail marketing to individuals unless:
- they have specifically consented to receive electronic marketing mail from you or
- they are an existing customer who has bought from you before (or negotiated to buy) a similar product in the past and you have given them a simple way to opt out when you first collected their details and in every message since.
2. You must be clear and honest about your identity and provide a valid contact address to enable customers to opt out or unsubscribe.
3. If someone opts out then you must stop sending all forms of electronic marketing to them and clearly confirm to them that you have received their instructions.
If customers become annoyed about the volume of marketing texts they receive or the inconvenient times that they are being received, they will often consider this as harassment regardless of the legal definition. If customers simply feel harassed then they will be turned right off your brand. Not only will this drive customers away but when people perceive they have been treated wrongly, they often tell others. There used to be an old adage that a satisfied customer will tell one person about their experience but a dissatisfied customer will tell ten people. In the modern day era of the internet and social media, a dissatisfied person can share their experience with millions incredibly fast and you are likely to have seen examples where this has had lasting negative effects on company reputations and even caused businesses to go under. Think of the fallout from the recent scandal involving an American airline.
Actual harassment is enforced by the police under legislation such as the Malicious Communications Act 1998, where an offence could be committed if anyone sends or causes to be sent electronic communications which are either indecent, grossly offensive, threatening or contain false information (or believed to be false by the sender), and the sender intended to cause distress or anxiety to the recipient through these actions. Whilst this is rarely an issue for most business to consumer communications, there have been reports of some unscrupulous organisations sending messages that could be construed as threatening to customers.
Usually, ‘bombardment’ of marketing text messages to an individual is unrequested and goes hand in hand with spamming, so the situation is best dealt with by anti-spamming legislation as discussed above. Despite common belief, there is also no current law in the UK to govern the times that marketing calls or messages can be made or sent (Don’t get confused with the American rules that state telemarketers must not make contact between 9pm and 8am, it only applies in the US!). Good marketing practice and common sense should prevail; you might not be breaking the law, but contact your audience too much or at inappropriate times and it could seriously harm your brand reputation and ultimately your profits.
The ICO publish detailed information and guidance for businesses as well as enforcement action they have taken on their website https://ico.org.uk.
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