Telephone marketing: The importance of the opt-out
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Legal and Regulatory Update This section of the journal looks at marketing, data protection, technology and e-commerce issues, providing an overview of recent key legal developments in these areas.
Telephone marketing: The importance of the opt-out Paul Langford Journal of Direct, Data and Digital Marketing Practice (2007) 9, 84–97. doi:10.1057/palgrave.dddmp.4350072 Telephone marketers need to be particularly careful when embarking on SMS campaigns, given the extent of legal regulation that serves to protect the privacy rights of consumers. World Networks Ltd recently discovered this for themselves, following two complaints to the ASA.
The complaints The promotional text message campaign that led to the complaints was as follows: ‘Orange customer, you may now claim your FREE CAMERA PHONE upgrade for your loyalty. Call now on 0207 386 4925. Offer ends 4th Aug. T&C’s apply. Opt-out available’. There were two complaints regarding the message. The first challenged whether the message was misleading, because when the recipient dialled the number given in the message, he was told he was not eligible for a free upgrade. The second complaint focused on whether World Networks had sought explicit consent before sending the message and whether the text message was misleading, because it did not tell recipients how to opt out of receiving further messages from World Networks. Both complainants also challenged whether the text message was misleading as it implied that it was sent by Orange.
World Networks’ arguments
Paul Langford Berwin Leighton Paisner LLP Adelaide House London Bridge London EC4R 9HA, UK
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World Networks raised a number of points in defence of its actions. First, it claimed the message did not state that Orange was the sender at all. It addressed recipients as Orange customers because the message had been sent to numbers assigned to Orange. Further, because its automated telephone answering system answered all incoming calls ‘Thank you for calling World Networks’, and because all sales staff answered calls ‘Good morning/afternoon, World Networks’, consumers would understand that the message was not from Orange.
© 2 0 0 7 PALGRAVE MACMILLAN LTD 1746- 0166 $30.00 VO L .9 NO.1 PP 84– 97. www.palgrave-journals.com/dddmp
Journal of Direct, Data and Digital Marketing Practice
Legal and Regulatory Update
‘Human error’
It also argued that the claim ‘you may now claim your FREE CAMERA PHONE upgrade. T&C’s apply’ implied that customers were possibly — but not automatically — eligible for the upgrade; they would need to meet the terms and conditions before they could receive it. World Telecom said that this was explained to the complainant when he called (in this case, because he had recently received an upgrade, he would not be eligible again for another ten months). World Telecom also said the message had been sent because of ‘human error’ and that it had put measures in place to ensure the mistake was not repeated. Customers could call the local rate number included in the message to request to be taken off
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