The case highlights substantial differences between the CAP Code, a set of industry rules applied by the Advertising Standards Authority (ASA), the Privacy and Electronic Communications Regulations, applied by the UK's Information Commissioner, and a European Directive of 2002 – which should be the blueprint for the entire regime.
The dispute began with an O2 customer in Hertfordshire, who has not been named, who received a text message. It stated:
"Get sport alerts & more. Text ACTIVE to 2020 2 set up, then go 2 Info services 2 subscribe 2 alerts. [email protected]. Each alert from 13p to receive".
Her objection was that the text message did not include an opportunity for her to opt-out of receiving further marketing text messages.
The ASA examined the nature of the consent given by this customer to O2, back in 1998, when a contract was signed with O2's predecessor, BT Cellnet. This included consent to receive marketing communications.
However, the ASA considered that, at that time, text message marketing was not yet established. So the ASA decided that O2 lacked "explicit consent" for text message marketing.
"Explicit consent" is a creature of the CAP Code; but the European Directive talked in terms of "prior consent"; and the UK Regulations refer to "unsolicited communications," while the Information Commissioner sticks to "prior consent". The inevitable confusion, says Shelagh Gaskill, a partner with Masons, the law firm behind OUT-LAW.COM, is "intolerable for marketers".
What are the exact differences between consent and explicit consent? It is impossible to tell, says Gaskill. "Either you have consent or you haven't," she reasons, and she welcomes the Commissioner's adherence to "prior consent".
The absence of "explicit consent" did not prevent O2 from sending text message marketing to this particular customer. Instead, the ASA concluded:
"Although the Authority acknowledged that the advertisers had obtained consent to send marketing communications, because they had not obtained explicit consent to send them by text message, it concluded that the complainant should have been told she had the opportunity to opt-out in every text message."
So the ASA was not saying that text message marketing was wrong; just that the nature of the consent was not explicit and therefore necessitated an extra requirement for opt-out instructions with each text message.
Putting aside the differences between prior and explicit consent, what the O2 case really does is highlight the contrast between the guidance followed by the ASA – written by the Committee of Advertising Practice, the body behind the CAP Rules – and the guidance published by the Information Commissioner, the UK's privacy chief.
The contrast is most visible when a marketer does have explicit consent. Does a text message marketer need to offer an opt-out with every message? Well, the ASA says the answer will be no if there is explicit consent; but the message from the Commissioner is yes, always.
Guidance notes on mobile marketing, written by CAP, state that, if there is explicit consent, marketers "need not tell [consumers] in every message that they can opt-out of (or unsubscribe from) having their data used for direct marketing purposes".
This is qualified in the guidance note: each message "must contain at the very least the identity of the marketer and a valid address (e.g. a web address or text-back channel that allows consumers to send opt-out requests and access the full address)."
So CAP and the ASA are taking the view that, as long as the marketer identifies itself in the message, a "text-back channel" is sufficient as an opt-out where explicit consent has been given.
OUT-LAW spoke to ASA spokesperson Donna Mitchell who confirmed that a "text-back channel" does not need to be explained in the wording of the message, provided it works.
This approach relies on the initiative of the message recipient: she has to assume that hitting "Reply" to the message and saying "Unsubscribe me" will work.
"We have no reason to think this is out of line with the legislation," added Mitchell.
The Information Commissioner's Office wants more than the CAP Code describes, but acknowledges that the approach of the CAP and the ASA is compliant with the letter of the law – since the Regulations only call for the inclusion of a "valid address" with every message, without explaining what constitutes a valid address.
The Information Commissioner published guidance to help marketers interpret the Privacy and Electronic Communications Regulations. His first version expressed an opinion that the reference to "valid address" in the Regulations meant a valid e-mail address or postal address, but not a telephone number.
He revised this guidance in May 2004, accepting that short code numbers could be used as a "valid address" in text messages, as long as there was no premium rate charge. "As good practice," he wrote, "a valid website address (where further valid contact details can be found) or a valid PO Box Number should be included in any promotional text message."
"Assuming the recipient has clearly consented to the receipt of messages," he added, "each message will have to identify the sender and provide a valid suppression address."
Bearing in mind that every message needs to identify the sender, the Commissioner gives an example of what might be a minimum text message:
"PJLtd2STOPMSGSTXT'STOP'TO (then add 5 digit short code)"
By contrast, the ASA approach would, in the presence of explicit consent, reduce this message to "PJLtd". Given the maximum limit of 160 characters in the SMS protocol, the difference in required characters could be significant for marketers.
We put this to Elizabeth Dunn, a manager with the Office of the Information Commissioner. Is the ASA getting it wrong, by asking only that replies are honoured, even if the option to reply is not explained?
"It is more helpful to spell out to people how they can unsubscribe. But if people texted back to unsubscribe and the request worked, we could not say that it's not valid," she said. "But it has to work."
The message that Dunn sends to marketers is that they set themselves apart from unscrupulous marketers by giving customers the choice, by being up-front about their unsubscribe option. She pointed out that people are less suspicious of marketing that highlights the option for unsubscribing.
Masons' Shelagh Gaskill commented: "The message we have been sending to clients and continue to send is that best practice is to include the unsubscribe."
She continued:
"We have a huge amount of sympathy with marketers because the law, combined with the CAP Code and the various guidance is now extraordinarily complicated.
"We have always advised our clients that minimum wording to send in a text message, after identifying themselves, is 'If not OK text NO to 12345' - and we are happy to see that this is now the revised guidance adopted by the Information Commissioner."