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. You could walk past a restaurant and receive a 'buy one
meal, get one free' offer on your phone – without the restaurant
knowing your number.
Until October, though, there was confusion over how to do that
in a way that is compatible with the Privacy and Electronic
Communications Regulations. These Regulations restrict unsolicited
marketing. They came into force in 2003 when far fewer consumers
had Bluetooth-enabled phones than have them today.
At the time, guidance from the Information Commissioner's Office
(ICO) said the Regulations did apply to Bluetooth. That made
Bluetooth marketing almost impossible because the Regulations
effectively require prior consent – and prior consent for Bluetooth
marketing is almost impossible to obtain in any practical
way.
The ICO announced a new interpretation last month.
In a statement, the ICO said: "Following discussions with the
Department of Business, Enterprise and Regulatory Reform [DBERR]
and others the Information Commissioner’s Office has amended its
guidance on the Privacy and Electronic Communications Regulations
2003."
"The guidance previously stated that marketing messages sent
using Bluetooth technology would be subject to PECR rules relating
to the sending of unsolicited marketing," it said. "However, the
Regulations only apply to messages sent over a public electronic
communications network and we have concluded that Bluetooth
messages are not in fact sent using such a network. We have amended
our guidance accordingly."
The ICO added: "It is for government to decide whether the law
should be changed to cover such marketing."
Yesterday, DBERR told OUT-LAW: "The Department wishes to work
with the European Commission during the review of the Privacy and
Electronic Communications Directive to find the best way to evolve
the current rules."
"We will be looking to ensure that definitions are suitable for
new technological developments in communications technology. We
will speak to stakeholders to gauge the size of the problem in
relation to Bluetooth and will discuss, in the context of the
review, any changes with them," it said.
The European Commission proposed amendments to the
Directive (41-page / 245KB) on 13th November. These amendments
will not affect Bluetooth marketing.
A spokesman for the European Commission told OUT-LAw that its
proposals "do not affect the current regulatory regime in place in
Member states as regards the sending of commercial messages through
a Bluetooth device."
"On the technical side, it is relatively easy to limit the
reception of bluetooth communications by setting the visibility
parameters of a device appropriately," he said. "The Commission
will continue to observe the development of Bluetooth marketing,
and consider appropriate measures should the need arise."
Struan Robertson, editor of OUT-LAW.COM and a technology lawyer
with Pinsent Masons, said there is currently an open window of
opportunity for marketers.
"I can't imagine that DBERR will find a problem with Bluetooth
marketing right now because it's pretty rare. That may not be down
to the Regulations, of course. It could be that marketers just
don’t want to use the medium. Still, anyone who does want to use
Bluetooth marketing seems to be legally safe for the time
being."
"There are commercial issues with Bluetooth marketing, though,"
said Robertson. "People will get really annoyed if a shop that they
pass every day on their way to work is constantly broadcasting an
ad to their phone. So hopefully the uses will be a bit more
creative than that."
Editor's note, 03/12/2007: The Commission's
statement was added to this story today. No comment had been
received when this article first appeared.
