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The mobile science of Mociology

Mobile technological advances have dramatically altered the communication landscape for brands. But how many brand owners understand the legal dimension to this changing world, asks Ardi Kolah.

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Students of US politics will no doubt recognise the name Joe Trippi. For those of you who don't, here's some background: Trippi was national campaign manager for US Presidential hopeful Howard Dean in 2004. And although Dean wasn't elected, Trippi secured his place in history by running the most successful fundraising campaign for any Democratic candidate in the history of US politics.

How? Well, he created a marketing recruitment strategy built on personalised communications on the web and phone.

What Trippi did was understand the relationship between grassroots demand and the impatience with traditional structures. In the best traditions of viral marketing, Trippi encouraged Dean supporters to use the internet to contact each other, plan gatherings and customise phrases -- all of which helped to grow support for their candidate in a more personalised way than had ever been seen before in a US election.

Before the campaign, Dean was a long-shot candidate from Vermont with 432 known supporters and $100,000 in the bank. By the end of the campaign he had over 700,000 supporters and $50m in the bank.

In his book, 'The Revolution Will Not be Televised: Democracy, the Internet and the Overthrow of Everything', Trippi claimed that the Dean campaign allowed him to put into practice his theory that internet technology and mobile communications not only give people full access to knowledge but also empower them to do something with that knowledge. And so the sociology of mobile lifestyles -- mociology (pronounced 'mo-see-ology') -- was born.

Mobility is the new virus
Worldwide, there are expected to be 3bn mobile users by 2010 where 2.1bn will be downloading music as well as ring tones, content, wallpaper and everything else in between. To get a taste of what's to come, you only have to look at Japan where there were 111m downloads in the first six months of this year.

Legal framework in the UK?
Unlike email marketing, there's no specific legislation governing mobile marketing and so marketers need to look at existing laws and codes of practice to work out what they can and can't do.

Privacy regulations
Privacy legislation is relevant here, which includes the Privacy and Electronic Communications (EC Directive) Regulations 2003.

This contains specific provisions focusing on the processing of location data and the use for direct marketing purposes of electronic mail, sms/text, live telephone calls and calls by which recorded messages are transmitted using automated calling systems.

Unsolicited SMS marketing material shouldn't be sent unless the recipient has given prior consent to such communications or the "soft opt in" exemption applies.

Marketers can't disguise their identity and must also provide a valid address to which the recipient can send an opt-out request from further marketing communications.

However, when mobile marketing campaigns, it's worth considering the target audience as the Privacy Regulations allow unsolicited direct marketing SMS to "corporate subscribers" (to employees of limited companies on their business mobile telephone paid for by their employer) on an opt out basis.

If you wish to rely on the "soft opt-in" exception to avoid gaining the express consent of individual subscribers to mobile marketing, you must ensure you meet the following criteria:
(a) you have obtained the contact details of the recipient in the course of the sale, or negotiations for the sale, of a product or service to that recipient;
(b) carried out the direct marketing in respect of its similar goods and services only, and;
(c) given the recipient a simple means, without charge, at the time of initial collection of the data to refuse (or opt out of) the use of his contact details for direct marketing purposes.  It must also be ensured that in each subsequent message to that individual you provide them with the right to opt out of future direct marketing using that channel.

As regards unsolicited live telephone calls for direct marketing purposes to mobiles, the Privacy Regulations require that no such calls are made to any number that is registered with any of the statutory Telephone Preference Services while calls to mobiles using automated diallers and sending pre-recorded messages may only be sent on a prior opt-in basis.

It's also clear from the definition of "electronic mail" that the "opt in" and "soft opt in" regime will also apply to unsolicited live marketing calls to mobile phones where the caller is unable to speak to the recipient and leaves a recorded message.

E-commerce regulations
The E-commerce Regulations 2002 and all current data protection legislation under the Data Protection Act 1998 applies.

British Code of Advertising, Sales Promotion and Direct Marketing
The CAP Code applies to both email and SMS marketing sent to individuals in their private capacity even if the communication is sent to the individual's business email address or mobile phone number.

The Code follows the Privacy Regulations by requiring that marketing SMS/text is only sent to individual subscribers with their prior explicit consent unless "customer soft opt in" applies. For such messages to "corporate subscribers" the CAP Code goes further than the law by requiring that the text/SMS may only be sent on an opt out basis if the message is promoting "business products."

Self regulation
The Mobile Marketing Association and the Direct Marketing Association have created codes of practice and in some cases best practice guidelines which are easy to follow.

Ardi Kolah is the author of Essential Law for Marketers (Butterworth Heinemann, £25) and is a marketing, public relations and sponsorship consultant.

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