The first thing you need to determine is whether you are going to market only your own goods and services to your customers, or whether you intend to market third party goods and services as well.

It is important that you have decided this right from the start because the type of permission or consent that you will need to obtain from your customer depends on your marketing intentions:

1. If you only intend to market your own goods and services, you can obtain consent on an opt-out basis; but
2. If you intend to send your customers’ mobile marketing messages about other companies’ goods and services, you will need to ensure that you have obtained the positive or opt-in consent from your customers for this type of marketing.

This is where you have advised your customers, at the point that they are providing their personal contact details including mobile phone number, that you intend to send them mobile (or electronic) marketing messages unless they object. Remember you must give them a mechanism for objecting at that point of data collection. Simply sending a marketing message containing an opt-out mechanism as the first point of objection does not comply with the legal requirements.

The marketing message must also be restricted to your own similar good and services. You may therefore need to tell consumers about the full range of products and services you offer, particularly if you sell an unusual combination. You also cannot disguise your identity as the sender of the message. If you are using someone else to broadcast the mobile message on your behalf then your name should appear as the sender. You must also offer them a unsubscribe mechanism with every mobile marketing message you send them which costs them no more than their standard network operator’s tariff for text messages.

This is where you give your customers the opportunity to actively choose to receive mobile marketing messages from you. For this type of consent to be valid, your customers must positively indicate that they wish to receive your mobile marketing messages. This could be achieved in a number of ways. For example, by ticking a box next to a statement such as:

If you wish to send marketing messages about other company’s products and services without passing the data on to other companies (host-messaging), you must get your customer’s consent to this in addition to the above.

If you wish to pass your customer’s mobile phone numbers on to third parties, so that they can market their own products and services directly to your customers then you must tell your customers either the types of products and services they will receive mobile marketing messages about, or the names of the third party companies you will pass the mobile phone numbers to.

Whilst it is not always easy to verify the age of people responding to your customers, you should consider asking for date of birth from your customers where it is possible that the audience for your marketing or sales material will include children and young people. This will help you determine what your responsibilities are in relation to using their personal information for your future mobile marketing activities and, for example ensuring that you do not send financial services marketing to children

If you collect personal information including mobile phone numbers via a web site, WAP site or a coupon then you have greater flexibility. If however, you collect it via a SMS then you can use the 160 characters to refer consumers to a website at which the full terms of data usage are displayed. For example, if someone has responded to a shortcode in response to your competition, you might consider sending an acknowledgement response along the following lines:

You must be able to demonstrate a history of sending mobile marketing messages that pre-dates 11 December 2003. This means that you must have been sending mobile marketing messages to the mobile phone numbers on your database on a regular basis, so that the customers receiving the messages are not surprised to receive them and have not unsubscribed from receiving mobile marketing messages from you. If you cannot demonstrate this historical ongoing marketing relationship with those mobile phone numbers, you will need to consider contacting all the mobile phone numbers on your list and asking them to verify their marketing preferences for you i.e. asking them to confirm that they wish to receive marketing messages to their mobile phone from you. It will not be sufficient to imply consent from a failure to respond, so for example you cannot simply send all the numbers on your database a SMS along the following lines:

You must ensure that every marketing message you send to your customers:

1. Identifies you as the sender, for example your mobile marketing message should begin ‘From ’. If you are using somebody else to broadcast the mobile marketing message on your behalf then your company name must appear as the sender.
2. Contains information on how the recipient can object to receiving further marketing messages from you. For SMS or text messages, the industry standard is to include a ‘STOP’ instruction at the end of the message.

Example:

You only need to clean your list of mobile phone numbers against the TPS if you are going to carry out voice marketing calls to the numbers. Because, legally, you may only send mobile (and electronic) marketing messages with consent – whether that is opt-out or opt-in consent as discussed above (under ’What is meant by opt-out consent?’ and ‘What is meant by opt-in consent?’). There is no legal requirement to clean your lists against TPS for mobile marketing messages. For the avoidance of doubt, a positive opt-in to receiving voice marketing calls on a mobile phone number for your programme overrides a TPS registration.

Mobile is the most personal and ‘always-on’ medium available. You must therefore be especially vigilant in collecting permission from the intended recipient (see above ‘What is meant by opt-out consent?’ and ’What is meant by opt-in consent?’), ensuring the relevance of the message sent and managing the times at which they are sent - generally avoid between 9pm and 8am. However, if you are offering a service, the object of which is to provide up-to-date alerts or information such as World Cup football results, subscribers to your service are probably less concerned about how late in the day they receive the information, provided that they get it in a timely manner. Where this is the case, you might consider including a notice to this effect in your terms and conditions.

The take up of mobile telephony has been particularly and dramatically high amongst young people. Services and charged (premium rate) messages sent to children therefore should be very carefully considered and the ICSTIS guidelines complied with. Please visit the ICSTIS website, www.icstis.org.uk. There are specific rules for marketing to children – see ‘How do I know how old my customers are?’.

Please remember that many of your customers may be using prepay mobile phone services, which means that if there is insufficient credit on their phone, some of your messages may not be received immediately. However, the undelivered messages are stored so that, when credit is added, the backlog of messages is delivered. Prepay services are easily transferable, which means that the customer, who consented to receive your messages, may pass the phone number to someone else, who has not consented to receiving your marketing messages. You should therefore ensure that you respect all opt-out requests, and act on all ’bounce’ or non-delivery reports that you receive. Please also bear in mind that if you have not communicated with a mobile phone number for more than six months, you might consider clarifying consent with the current user before beginning to send them mobile marketing messages.

Finally, mobile network operators recycle mobile phone numbers that have been inactive for a period of time, this process of recycling takes about nine months but is usually triggered by a period of inactivity on a mobile phone number of 30 days. You should therefore review your bounce or non-delivery messages to ensure that numbers to which you have been unable to deliver messages for a period of 6-9 months are removed from your list or service since it is highly likely that number will be recycled and allocated to a new customer who will not have consented to receive your messages or content.

Messages are charged to the consumer on the basis either of those SENT (known as mobile originated or MO) or those RECEIVED (known mobile terminated or MT). Sometimes both of these apply. The cost for messages SENT is set by the network with which the user has a relationship, and are normally around 10p – 12p per SMS. The cost for messages RECEIVED is set by the service provider at price points ranging from 10p to £3. The user MUST be told before a message is sent to them that it will incur a cost and specifically what that cost is.

SMS messages are generally sent into a shortcode (e.g. 81225). Such codes can be shared (i.e. many promotions running on one code) or exclusive (i.e. one promotion or one company running on one code). Promotional messages (e.g. competitions or votes) generally use a keyword to identify the promotion – a user may therefore send the keyword ‘quiz’ to 81225 or ‘comp’ to 81225 thereby distinguishing one promotion from another.

If you intend to charge people to receive your messages, for example you are offering a ringtone club whereby your subscribers are sent and billed or charged for a given number of ringtones per month, you must make sure that your subscribers are absolutely clear that they will be charged for your messages. You should also make it clear what those charges are. Although this information may be included in the terms and conditions, you should also consider sending your subscribers an acknowledgement of subscription along the following lines:

There are specific ICSTIS rules relating to the provision of subscription services with which you must be familiar and to which you must adhere. Please visit the ICSTIS website, www.icstis.org.uk.

It is possible to buy lists of mobile phone numbers but you must choose your supplier with care. Things to check are:

1. The marketing notice that was given at the point of data collection – does it make clear that the mobile phone number will be used to send the user third party marketing? Have the customers been told the types of products and services they will receive mobile marketing about or the names of the third party companies which their mobile phone numbers will be passed to?
2. The consent mechanism – have the people on the list positively indicated that they are happy to receive third party marketing? When did that opt-in take place or when was it last renewed?
3. How frequently have the numbers been sent mobile marketing messages? And by what sort of companies and has the user ever responded to marketing messages?
4. Has an opt-out mechanism been provided in previously sent mobile marketing messages?
5. Have all opt-out requests been respected and administered?
6. How often is the database of numbers cleaned?
7. Is the supplier willing to give you a warranty regarding the quality of the numbers that they have on their database? Will the supplier give you a warranty that the numbers have been collected in accordance with all legal requirements?
8. Is the supplier willing to give you a warranty regarding the quality of the numbers that they have on their database? Will the supplier give you a warranty that the numbers have been collected in accordance with all legal requirements?

Bluetooth mobile technology offers marketers a unique opportunity to reach people in a location specific area with rich content but without the cost of the mobile networks’ SMS and MMS technology. With Bluetooth anyone with a Bluetooth enabled mobile device can instantly receive rich content including coupons, single track song downloads, short video clips, even links to WAP micro-sites.

Bluetooth technology does not broadcast to all devices, but instead actively listens for devices as they come into range and formulates a message specific to that unique device. This is akin to using a mobile phone number to communicate with the handset. Therefore the same standards should apply as any other form of mobile marketing such as SMS marketing. This means that you need consent from the intended recipient before sending a Bluetooth marketing message to their handset. See previous FAQs on consent.

Unfortunately, manufacturers of equipment that include Bluetooth set up their equipment in different ways. This means that the person that you intend to communicate with may have simply bought a device that has Bluetooth active and set to “discoverable” – they may however not be aware of this. You therefore cannot infer consent from the fact that a Bluetooth is in that mode. You must obtain consent to the use of Bluetooth marketing. See FAQ below: How can I use Bluetooth marketing in compliance with the Privacy & Electronic Communications Regulations 2003?

It is difficult for people to express an opt-out request to a Bluetooth marketing system. They may not know what content to send and or where to send the content to express an opt-out request. There is no concept of “Reply” to Bluetooth because Bluetooth is not a message solution. Thus there is no option to “Reply with the word STOP” as you would find in SMS marketing. See FAQ below: How can I use Bluetooth marketing in compliance with the Privacy & Electronic Communications Regulations 2003?

One such solution may be to promote the availability of Bluetooth content on traditional media (poster or other OOH media) and invite people to “pair” with the marketing campaign. When someone wants to opt-out, they can delete the pairing. As long as a person’s device is paired to the marketing campaign, the device is eligible to receive marketing messages. The first message to the device could explain that in order to opt-out of future marketing messages, they need only to delete the pairing.

A further potentially compliant implementation for Bluetooth marketing involves a 3rd party downloaded application. Based upon an application that is downloaded to the mobile device a consumer can activate the application and then send and receive content via Bluetooth. Samples of this type of application were recently presented by Viacom and Kameleon and Jelliingspot. The application may be either Symbian or Java or Windows ME based.

Infrared marketing offers many of the same benefits of Bluetooth marketing in that it offers consumer content in a location specific construct. Consent for infrared marketing is implied in that a person must actively direct their infrared enabled device towards the marketing system’s infrared transmitter to receive the content. Casual “walk near” contact is highly unlikely to occur. The connection is only valid for as long as the device is directed at the transmitter and thus opt-out is as simple as walking away.