As an e-marketer, you may already use or provide premium SMS and MMS services—SMS content services billed at a premium fee for things like competition entries and ringtone downloads—or you may be thinking about it. As well as complying with the Mobile Premium Services Code 2011 (commonly known as the MPS Code), you must also comply with the Spam Act. We’d now like to explain the relationship between the Spam Act and premium SMS/ MMS messages.
It’s easy, really!
The simple rule for any e-marketer is this—if an SMS you send is a commercial electronic message, then you’ll need to comply with the Spam Act. The same applies to senders of premium SMS and MMS messages. And if you don’t know what your Spam Act obligations are—or worse, choose to ignore them—then you’re running the risk of damaging your business’s reputation.
So what is a commercial electronic message?
The Spam Act is pretty specific about what a commercial electronic message is. In general terms, your SMS will be a commercial electronic message if it promotes and/or advertises products and services. And it’s important to remember that promotion or advertising doesn’t need to be the main reason for sending the message. Even routine premium SMS and MMS messages can be commercial electronic messages if the content of the message promotes or advertises.
The following are examples of premium SMS messages that have been reported to us and that we think do promote and/or advertise products and services:
- Yellow is Australia’s most rewarding SMS trivia quiz. You can win great prizes each and every month just by being the fastest to answer all 10 questions! 3D TV’s,MP3 player’s, Cash – could be ALL yours just by playing So REPLY BY SENDING YES ! Or Call Our Customer Support Call : xxxxxxxxx
- FreeMsg: U have not sent OK to 19xxxx, your order is waiting..Please do reply OK to enjoy your downloads from Yellow. Help? Call xxxxxxxxx
- FreeMSG WIN $5000 CASH Yellow! Q1 Who hosted Hey Hey Its Saturday? A Daryl Sommers or B Rove Reply WIN A OR WIN B Help? xxxxxxxx Stop? Reply stop to 19xxxxx
We think that the senders of these messages all fell short of meeting their Spam Act obligations in one way or another. And we don’t think that they comply with the requirements of the MPS Code either.
So what are the requirements of the Spam Act?
As far as the Spam Act goes, if the content of a message is factual then you need only comply with the sender identification requirements. If the message is a commercial electronic message, you’ll need to make sure that you comply with the three key requirements of the Spam Act:
- You must have consent from the owner of the mobile phone.
- You must identify yourself in your message and provide contact details.
- You must include an unsubscribe facility in your message.
But consent can be curly …
We often receive complaints from people who have received an SMS they did not request. In many cases, the sender claims that a third party must have entered the phone number into a website. Remember that you must always have consent from the owner of a mobile phone. If you’re unsure about this, it’s too risky to send SMS messages, particularly if the content makes them commercial electronic messages. This is not only because you may fall foul of the Spam Act but because, in our experience, people don’t like receiving repeated unsolicited messages. We even hear similar feedback from people who have actually requested a service. As discussed in previous blogs, people will not only tell us about their experience but all their friends too—a sure way to have negative reports spread about your business.
It’s OK—just follow these tips
The good news is that a lot of that consumer anger or frustration can be prevented if you think before you send a premium SMS or MMS message. Consider the following tips:
- Is the message in any way a promotion or advertisement?
- Can the message be worded in a factual manner?
- If the message is a commercial electronic message, do I have consent from the mobile phone owner and an unsubscribe facility?
- Does the message include my name and contact details?
- Does the message comply with the Spam Act and my other obligations?