Carphone Warehouse case sheds light on legality of text marketing

by Stephen Groom, marketingdirectmag.co.uk 21-May-09, 15:05

A Carphone Warehouse case provides guidance on text messaging's 'explicit consent' issue

Q: My company has had a complaint from a consumer to whom we sent a marketing text message, saying that they'd never given their permission to be marketed via mobile. What is our defence?

A: Generally speaking, the CAP Code requires marketers to have "explicit consent", which is sometimes called opt-in consent, to send marketing text messages to consumers.

This can present a problem for marketers when they buy mobile phone data from a third party, as proved the case in 2003 when Carphone Warehouse bought a list from a lifestyle data supplier whose survey had featured a request for mobile phone numbers.

The data collectors did not provide a tick-box that stated the respondent gave explicit consent, but instead said that some firms might send offers via mobile phone.

Carphone Warehouse used the data to do a test campaign and was reported to the Advertising Standards Authority (ASA) by one recipient.

The phone retailer argued that the man who complained had given permission for his details to be used.

The ASA initially considered explicit consent to be absent and so upheld the complaint against Carphone Warehouse.
However, in 2004, Carphone Warehouse successfully argued that people completing the lifestyle survey would not have given their mobile phone number unless they were willing to receive marketing promotions.

The ASA revised its 2003 decision in favour of Carphone Warehouse, ruling that customers who filled in their mobile phone number would have been aware that in doing so, they were likely to receive offers by text message. Therefore, the data collectors had obtained explicit consent to send offers on mobile phones.