The decision, published today, is only the second of its kind by the ASA on new requirements for consent in e-marketing, following a case last month on unsolicited e-mail marketing.
The mobile phone retailer's mistake was in a text message that stated:
"For fantastic free handsets, inc up to 6 months free line rental or a free dvd player, call Carphone Warehouse on ... t&c's [sic] apply ..."
The ASA received a complaint from an individual saying that the text message was sent without his consent.
Carphone Warehouse explained to the ASA that an external list provider had sent the messages on its behalf. It said the list provider had compiled the list from information gathered in a National Shoppers' survey. It sent the ASA a copy of that survey.
The company argued that the man who complained had given permission for his details to be used but had asked the list-owners to suppress them after he had received the message.
The ASA acknowledged that the survey offered respondents the chance to opt out of receiving marketing communications from third parties. It nevertheless noted a breach of the CAP Code, a set of rules governing the content of UK non-broadcast marketing communications, produced by the UK's Committee of Advertising Practice which are administered by the ASA.
The latest edition of the CAP Code, published in March, introduced a requirement for marketers to have the explicit consent of consumers before sending them a promotional text message. The ASA considered this consent to be absent – so upheld the complaint against The Carphone Warehouse.
It told the company "to ensure that future commercial text messages sent on its behalf were sent only to consumers who had given explicit consent to receive text messages."
Another complaint against Carphone Warehouse was also upheld by the ASA today.
The offer of the "free DVD player" was deemed to be misleading because it did not make clear that a new phone contract was required.
The ASA took the view that the reference to "t&c's apply" was insufficient to qualify the offer – since the need for a new contract was a significant condition "likely to affect consumers' decisions to respond".
The CAP Code provision, requiring consent before e-marketing, is similar to a forthcoming legal requirement, the result of Europe's Directive on Privacy and Electronic Communications. It will come into force in the UK on 11th December 2003.