Direct marketing by text: have you consented?

In the September 2014 independence referendum, voters in Scotland will answer the question: "Should Scotland be an independent country?". Between now and then, there's a long campaign of persuasion, for both sides. Each will of course try to get its message out to as many potential voters as it can and will use social media and other modern forms of communication as well as the more traditional door-knocking and leafleting. There is, however, disquiet at the moment from some who are unhappy at having received text messages from the anti-independence "Better Together" organisation. According to the office of the Information Commissioner, the issue of "[s]pam texts...continues to be the one of the biggest concerns to consumers" and things have reached the point where Better Together has felt compelled to post an explanation on its website, aimed presumably at the potentially disgruntled. As Better Together recognises:

"I’m sure that the most obvious question you will have if you have received this message is ‘where did they get my mobile number from?’"

Now you might have thought their hopes would have been higher than that. Perhaps "Thanks for the message; what can I do to help your campaign?" Leaving aside the wisdom of persisting with a marketing campaign that has to have at its heart a page to mollify those who have been upset by it, what about the law of all this?

Better Together explain:

"If you have received a text message today it is because you have filled in a form in the past and ticked the option to allow you to be contacted by different companies and organisations. Data management companies hold databases of information from people like yourself and can make it available to groups such like our mobile marketing agency.

All of this information is held in strict accordance with the law. The company that our agency got your mobile number from are reputable and are compliant with every rule and every regulation.

If you dont want to receive further messages, you can opt out. Your details will then be deleted."

Is that an entirely accurate summary of the legal position? Well, the key piece of law is that comprising the The Privacy and Electronic Communications (EC Directive) Regulations 2003. That these Regulations govern the use of text messages by Better Together seems clear from the definition of "electronic mail" which, by virtue of Regulation 2(1)  "means any text, voice, sound or image message sent over a public electronic communications network which can be stored in the network or in the recipient’s terminal equipment until it is collected by the recipient and includes messages sent using a short message service". Regulation 22 then provides:

"Use of electronic mail for direct marketing purposes 

(1) This regulation applies to the transmission of unsolicited communications by means of electronic mail to individual subscribers. 

(2) Except in the circumstances referred to in paragraph (3), a person shall neither transmit, nor instigate the transmission of, unsolicited communications for the purposes of direct marketing by means of electronic mail unless the recipient of the electronic mail has previously notified the sender that he consents for the time being to such communications being sent by, or at the instigation of, the sender. 

(3) A person may send or instigate the sending of electronic mail for the purposes of direct marketing where— 

(a)that person has obtained the contact details of the recipient of that electronic mail in the course of the sale or negotiations for the sale of a product or service to that recipient;
(b)the direct marketing is in respect of that person’s similar products and services only; and
(c)the recipient has been given a simple means of refusing (free of charge except for the costs of the transmission of the refusal) the use of his contact details for the purposes of such direct marketing, at the time that the details were initially collected, and, where he did not initially refuse the use of the details, at the time of each subsequent communication. 

(4) A subscriber shall not permit his line to be used in contravention of paragraph (2)." (emphasis added)

The Information Commissioner is tasked with enforcing the Regulations and says that "[p]ut simply, a solicited message is one that is actively invited". The terms of Regulation 22(2) talk of the need for the recipient of the message to have "previously notified the sender" that he consents to such messages being sent (our emphasis). Now, if that was the end of it, Better Together would surely be in some trouble. They do not claim an entitlement to send arising from Regulation 22(3) and don't appear to dispute that the messages are being sent, perhaps overwhelmingly, to people who have had no direct contact with them at all, let alone people who have told Better Together that Better Together can text them. However, the Information Commissioner's office says that "[w]e accept that this invitation can be given via a third party". So, like the "data management companies" Better Together talked about? Well, yes but. The Commissioner's office explains: 

"Despite our view about overriding consent, the Regulations do not expressly rule out obtaining consent through a third party. However, if you are buying or renting a list from a broker, you will need to seek assurances from them about the basis on which the information was collected.

It is difficult to see how third-party lists can be compiled and used legitimately except where the individual subscriber expressly invites (solicits) marketing by electronic mail. This is because you may only send unsolicited marketing to an individual subscriber who has ‘previously notified the sender that they consent for the time being to such communications being sent by, or at the instigation of, the sender.’ (Regulation 22(2) applies). Arguably, you may obtain a person’s consent through a third party, but a lot will depend on the clarity and transparency of the information that third party gave the intended recipient when it collected their contact details." (our emphasis)

So, things may not be quite as simple for Better Together as showing that some years ago someone "ticked a box". Indeed the Information Commissioner's office has a section on their site headed "Does consent mean ticking a box?". It clearly sets out that that there must have been "specific and informed indication of [the recipient's]...wishes". Further:

"In our view, therefore, there must be some form of communication where the individual knowingly indicates consent. This may involve clicking an icon, sending an email or subscribing to a service. The crucial consideration is that the individual must fully understand that by the action in question they will be giving consent."

Now this surely gets to the nub of it. Things will be looked at realistically and not in some formal, legalistic way. So. If I tick some box on a form at the time I book into a hotel, or go on holiday, or apply for a loan, or join a supermarket loyalty scheme, or buy a TV, or sign up to Facebook or Twitter, and even if I thereby consent to future contact by unspecified companies or organisations, to what, on a realistic and sensible analysis of what I have done, am I consenting? On such an analysis, am I not likely to have had in my head that I am consenting to being contacted by companies offering me something I might be interested in buying? Offering me goods or services, that I might think useful and which I can decide to buy or not to buy? Is that not what a normal person would understand the words "direct marketing" to connote? Or am I really to be taken as having given informed consent to being contacted, on my mobile phone, by a political organisation that is trying to persuade me to vote for a cause with which I might fundamentally disagree? The aims of Better Together are of course entirely legitimate, in a democracy, but you can imagine a situation involving other organisations with much more extreme agendas where the issue is thrown into starker relief. When I ticked that box, was this what I meant? Some recipients clearly have been taken by surprise at being contacted in this way and that might suggest that at least some people did not intend to give the impression that their consent was as wide as Better Together claim it to have been.

The evening before the text campaign started, we recall (accurately, we hope) seeing  Better Together's campaign director, Blair McDougall telling a television interviewer that his campaign would be doing something the next day that would be a first in a democracy. Maybe it's becoming apparent that there's a reason for that. Anyway, given this, it is perhaps unsurprising that we haven't found any previous decision by the courts or the Information Commissioner that would give any guidance as to what might happen if a disgruntled recipient were to complain formally. As we say, the Information Commissioner has a variety of means to enforce compliance with the Regulations and has a fairly detailed policy for doing so. His office invites complaints about automatic calls and silent calls as well as unsolicited marketing calls, emails, faxes and texts. It is made clear that the Commissioner may not be able to deal with individual complaints but criminal prosecutions can be pursued and fines of up to £500,000 imposed for serious breaches. The  outcome of any complaint would of course depend on the specific facts and circumstances of precisely what "consent" had been given and how that should be interpreted. Even were the finding to be against Better Together we wouldn't expect that the result would be along the lines of the £90,000 fine imposed recently on DM Design but we suppose that might depend to some extent on whether the number of complaints made about Better Together approached the nearly 2,000 about the sales calls from the Cumbernauld kitchen fitters. We may just have to wait and see.