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Carphone Warehouse SMS spam ruling reversed

Interpretation of 'explicit consent'

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The UK's Advertising Standards Authority has taken the unusual step of overturning its own previous decision which criticised Carphone Warehouse for unsolicited text messaging. It has now decided that the retailer's use of a marketing list was fair.

The problem, it seems, is in the meaning of "explicit consent". Today's announcement suggests the ASA is bringing its interpretation of advertising industry rules into line with equivalent legislation which refers only to the need for "consent" - not "explicit consent".

The dispute began when the following text message was sent:

"For fantastic free handsets, inc up to 6 months free line rental or a free dvd player, call Carphone Warehouse on ... t&c's [sic] apply ..."

The ASA received a complaint from an individual saying that the text message was sent without his consent. Carphone Warehouse explained to the ASA that an external list provider had sent the messages on its behalf. It said the list provider had compiled the list from information gathered in a National Shoppers' survey. It sent the ASA a copy of that survey.

Carphone Warehouse argued that the man who complained had given permission for his details to be used but had asked the list-owners to suppress them after he had received the message.

The ASA acknowledged that the survey offered respondents the chance to opt out of receiving marketing communications from third parties. It nevertheless noted a breach of the CAP Code, a set of rules governing the content of UK non-broadcast marketing communications, produced by the UK's Committee of Advertising Practice which are administered by the ASA.

The CAP Code contains a requirement for marketers to have the "explicit consent" of consumers before sending them a promotional text message. The ASA considered this consent to be absent - so upheld the complaint against The Carphone Warehouse.

In October 2003, it told the company "to ensure that future commercial text messages sent on its behalf were sent only to consumers who had given explicit consent to receive text messages."

However, the ASA today published a revised decision.

Carphone Warehouse had argued that people completing the National Shoppers' survey would not have given their mobile phone number unless they were willing to receive marketing promotions.

It explained that the survey had made clear that respondents did not have to answer all questions, and it also stated alongside the request for a mobile phone number: "Some reputable companies may prefer to communicate offers to you on your mobile phone."

The company argued that it had therefore obtained respondents' explicit consent to receive offers on their mobile phones.

The Authority noted the survey stated its primary purpose was to collect respondents' opinions about the goods and services provided by retailers and not to collate a mailing list. It acknowledged, however, that the survey told respondents that some companies might contact them for marketing purposes.

The Authority explained in today's revised adjudication that it had noted recent guidance from the Office of the Information Commissioner. This stated that consent should be obtained but did not specify exactly how that consent could be obtained.

It also referred to a discussion paper prepared by several data owners that it said outlined various ways in which explicit consent could be obtained. The ASA considered that:

"...although the data-owners had not provided a tick-box that stated that the respondent gave explicit consent, because the survey stated that some companies might send offers via mobile phone alongside the question that asked for respondents' mobile phone numbers customers who filled in their mobile number would be aware that in doing so, they were likely to receive offers by text message."

The Authority therefore concluded that "the data-owners had obtained explicit consent to send offers on mobile phones".

This will likely come as welcome relief to e-marketers, many of whom are understandably baffled by the differences between the CAP Code, the Regulations which are the subject of the Information Commissioner's guidance, and the differences between "consent", "explicit consent", "opt-in", and "opt-out".

All of these rules - and how businesses should apply them - will be explained at the forthcoming OUT-LAW Breakfast Seminars. These free events are taking place in April and May in London, Edinburgh, Glasgow, Edinburgh and Dublin.

The ASA did, however, uphold another complaint over the same text message: the offer of the "free DVD player" was deemed misleading because it failed to make clear that a new phone contract was required, and the reference to "t&c's apply" was considered insufficient.

© copyright 2004 OUT-LAW.com

OUT-LAW.COM is part of international law firm Masons.

Related story

Carphone Warehouse warned over SMS spam

OUT-LAW seminars

OUT-LAW is running a series of seminars on "Monitoring Employees" and "E-mail Marketing: How to do it lawfully" across the UK and in Dublin. They begin on 20 April and full details can be found here.

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