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Do your Bluetooth marketing while you still can

OUT-LAW News, 30/11/2007

UPDATED: A window of opportunity for marketing by Bluetooth technology that opened in October could be closed once more, the UK Government has said. Definitions in privacy regulations are being checked, stakeholders are being consulted, and the law could change.

Bluetooth is a standard that lets devices share data wirelessly. Most Bluetooth-enabled mobile phones can only detect other Bluetooth-enabled devices within a few square metres; but some devices can 'broadcast' to devices up to 100 metres away.

The technology presents an obvious marketing opportunity: advertising hoardings and premises can transmit messages using Bluetooth and all enabled devices within range will receive the message. You could walk past a restaurant and receive a 'buy one meal, get one free' offer on your phone – without the restaurant knowing your number.

Until October, though, there was confusion over how to do that in a way that is compatible with the Privacy and Electronic Communications Regulations. These Regulations restrict unsolicited marketing. They came into force in 2003 when far fewer consumers had Bluetooth-enabled phones than have them today.

At the time, guidance from the Information Commissioner's Office (ICO) said the Regulations did apply to Bluetooth. That made Bluetooth marketing almost impossible because the Regulations effectively require prior consent – and prior consent for Bluetooth marketing is almost impossible to obtain in any practical way.

The ICO announced a new interpretation last month.

In a statement, the ICO said: "Following discussions with the Department of Business, Enterprise and Regulatory Reform [DBERR] and others the Information Commissioner’s Office has amended its guidance on the Privacy and Electronic Communications Regulations 2003."

"The guidance previously stated that marketing messages sent using Bluetooth technology would be subject to PECR rules relating to the sending of unsolicited marketing," it said. "However, the Regulations only apply to messages sent over a public electronic communications network and we have concluded that Bluetooth messages are not in fact sent using such a network. We have amended our guidance accordingly."

The ICO added: "It is for government to decide whether the law should be changed to cover such marketing."

Yesterday, DBERR told OUT-LAW: "The Department wishes to work with the European Commission during the review of the Privacy and Electronic Communications Directive to find the best way to evolve the current rules."

"We will be looking to ensure that definitions are suitable for new technological developments in communications technology. We will speak to stakeholders to gauge the size of the problem in relation to Bluetooth and will discuss, in the context of the review, any changes with them," it said.

The European Commission proposed amendments to the Directive (41-page / 245KB) on 13th November. These amendments will not affect Bluetooth marketing.

A spokesman for the European Commission told OUT-LAw that its proposals "do not affect the current regulatory regime in place in Member states as regards the sending of commercial messages through a Bluetooth device."

"On the technical side, it is relatively easy to limit the reception of bluetooth communications by setting the visibility parameters of a device appropriately," he said. "The Commission will continue to observe the development of Bluetooth marketing, and consider appropriate measures should the need arise."

Struan Robertson, editor of OUT-LAW.COM and a technology lawyer with Pinsent Masons, said there is currently an open window of opportunity for marketers.

"I can't imagine that DBERR will find a problem with Bluetooth marketing right now because it's pretty rare. That may not be down to the Regulations, of course. It could be that marketers just don’t want to use the medium. Still, anyone who does want to use Bluetooth marketing seems to be legally safe for the time being."

"There are commercial issues with Bluetooth marketing, though," said Robertson. "People will get really annoyed if a shop that they pass every day on their way to work is constantly broadcasting an ad to their phone. So hopefully the uses will be a bit more creative than that."

Editor's note, 03/12/2007: The Commission's statement was added to this story today. No comment had been received when this article first appeared.