The case highlights substantial differences between the CAP
Code, a set of industry rules applied by the Advertising Standards
Authority (ASA), the Privacy and Electronic Communications
Regulations, applied by the UK's Information Commissioner, and a
European Directive of 2002 – which should be the blueprint for the
entire regime.
The dispute began with an O2 customer in Hertfordshire, who has
not been named, who received a text message. It stated:
"Get sport alerts & more. Text ACTIVE to
2020 2 set up, then go 2 Info services 2 subscribe 2 alerts.
Terms@o2.co.uk. Each alert from 13p to receive".
Her objection was that the text message did not include an
opportunity for her to opt-out of receiving further marketing text
messages.
The ASA examined the nature of the consent given by this
customer to O2, back in 1998, when a contract was signed with O2's
predecessor, BT Cellnet. This included consent to receive marketing
communications.
However, the ASA considered that, at that time, text message
marketing was not yet established. So the ASA decided that O2
lacked "explicit consent" for text message marketing.
"Explicit consent" is a creature of the CAP Code; but the
European Directive talked in terms of "prior consent"; and the UK
Regulations refer to "unsolicited communications," while the
Information Commissioner sticks to "prior consent". The inevitable
confusion, says Shelagh Gaskill, a partner with Masons, the law
firm behind OUT-LAW.COM, is "intolerable for marketers".
What are the exact differences between consent and explicit
consent? It is impossible to tell, says Gaskill. "Either you have
consent or you haven't," she reasons, and she welcomes the
Commissioner's adherence to "prior consent".
The absence of "explicit consent" did not prevent O2 from
sending text message marketing to this particular customer.
Instead, the ASA concluded:
"Although the Authority acknowledged that
the advertisers had obtained consent to send marketing
communications, because they had not obtained explicit consent to
send them by text message, it concluded that the complainant should
have been told she had the opportunity to opt-out in every text
message."
So the ASA was not saying that text message marketing was wrong;
just that the nature of the consent was not explicit and therefore
necessitated an extra requirement for opt-out instructions with
each text message.
Putting aside the differences between prior and explicit
consent, what the O2 case really does is highlight the contrast
between the guidance followed by the ASA – written by the Committee
of Advertising Practice, the body behind the CAP Rules – and the
guidance published by the Information Commissioner, the UK's
privacy chief.
The contrast is most visible when a marketer does have explicit
consent. Does a text message marketer need to offer an opt-out with
every message? Well, the ASA says the answer will be no if there is
explicit consent; but the message from the Commissioner is yes,
always.
Guidance from the CAP Code
Guidance notes on mobile marketing, written by CAP, state that,
if there is explicit consent, marketers "need not tell [consumers]
in every message that they can opt-out of (or unsubscribe from)
having their data used for direct marketing purposes".
This is qualified in the guidance note: each message "must
contain at the very least the identity of the marketer and a valid
address (e.g. a web address or text-back channel that allows
consumers to send opt-out requests and access the full
address)."
So CAP and the ASA are taking the view that, as long as the
marketer identifies itself in the message, a "text-back channel" is
sufficient as an opt-out where explicit consent has been given.
OUT-LAW spoke to ASA spokesperson Donna Mitchell who confirmed
that a "text-back channel" does not need to be explained in the
wording of the message, provided it works.
This approach relies on the initiative of the message recipient:
she has to assume that hitting "Reply" to the message and saying
"Unsubscribe me" will work.
"We have no reason to think this is out of line with the
legislation," added Mitchell.
The Information Commissioner's Office wants more than the CAP
Code describes, but acknowledges that the approach of the CAP and
the ASA is compliant with the letter of the law – since the
Regulations only call for the inclusion of a "valid address" with
every message, without explaining what constitutes a valid
address.
Guidance from the Commissioner
The Information Commissioner published guidance to help
marketers interpret the Privacy and Electronic Communications
Regulations. His first version expressed an opinion that the
reference to "valid address" in the Regulations meant a valid
e-mail address or postal address, but not a telephone number.
He revised this guidance in May 2004, accepting that short code
numbers could be used as a "valid address" in text messages, as
long as there was no premium rate charge. "As good practice," he
wrote, "a valid website address (where further valid contact
details can be found) or a valid PO Box Number should be included
in any promotional text message."
"Assuming the recipient has clearly consented to the receipt of
messages," he added, "each message will have to identify the sender
and provide a valid suppression address."
Bearing in mind that every message needs to identify the sender,
the Commissioner gives an example of what might be a minimum text
message:
"PJLtd2STOPMSGSTXT'STOP'TO (then add 5 digit
short code)"
By contrast, the ASA approach would, in the presence of explicit
consent, reduce this message to "PJLtd". Given the maximum limit of
160 characters in the SMS protocol, the difference in required
characters could be significant for marketers.
We put this to Elizabeth Dunn, a manager with the Office of the
Information Commissioner. Is the ASA getting it wrong, by asking
only that replies are honoured, even if the option to reply is not
explained?
"It is more helpful to spell out to people how they can
unsubscribe. But if people texted back to unsubscribe and the
request worked, we could not say that it's not valid," she said.
"But it has to work."
The message that Dunn sends to marketers is that they set
themselves apart from unscrupulous marketers by giving customers
the choice, by being up-front about their unsubscribe option. She
pointed out that people are less suspicious of marketing that
highlights the option for unsubscribing.
Masons' Shelagh Gaskill commented: "The message we have been
sending to clients and continue to send is that best practice is to
include the unsubscribe."
She continued:
"We have a huge amount of sympathy with marketers because the
law, combined with the CAP Code and the various guidance is now
extraordinarily complicated.
"We have always advised our clients that minimum wording to send
in a text message, after identifying themselves, is 'If not OK text
NO to 12345' - and we are happy to see that this is now the revised
guidance adopted by the Information Commissioner."
