SMS Marketing Laws – Getting Contact Details and Consent
Text messaging is one of the most effective ways to reach consumers in marketing. On average, SMS messages are opened and responded to in less than two minutes, while it can take users up to 90 minutes to open an email.
As SMS marketing has grown in popularity, so has awareness of privacy issues, with new legislation such as GDPR and the CAN-SPAM Act introduced in many countries to protect consumers’ privacy and restrict unwanted marketing via electronic communications such as text messaging.
There are a lot of similarities between these rules in some areas, such as the requirement to obtain users’ express consent to send marketing communications, and to provide accurate contact details. However, the necessary steps to comply with regulations can also have their own quirks.
Failing to follow these rules could lead to significant fines and legal action from unhappy customers. Since these rules exist to protect people from unwanted marketing and privacy breaches, it is also likely to have a very negative impact on your Net Promoter Score. And improving NPS should be a focus of any great customer service team.
Effective Ways to Get Customer Phone Numbers
Wherever your business is operating, in addition to following the regulations you also need to actually convince people to sign up for your SMS marketing campaign. Most consumers aren’t going to give you their contact details unless they can see what is in it for them.
There are a number of ways to offer value to users in exchange for a marketing opt-in:
Sign-Ups and Purchases
Users who are in the process of signing up or purchasing from your business are clearly interested in your products, so it is a great time to offer messages about future products and deals while their enthusiasm is still high.
Competitions and Contests
A social media contest or giveaway gives your audience a clear incentive to take action, by asking them to sign up for your SMS marketing in order to enter the contest.
67% of consumers are more likely to buy from a brand they follow on social media, so this can be a great way to attract attention to your SMS marketing campaign that translates into actual purchases. If you’re not sure how to create an effective social media contest, analyzing the competition can be a great place to start.
Exclusive Deals
By offering promotions and discounts which are only available to your SMS subscribers, frequent customers can be rewarded with exclusive offers. Your promotion doesn’t need to be anything extravagant either. Taco Bell was able to increase its mobile marketing subscribers by 13,000 people over 5 weeks simply by offering a free drink with food item purchases.
Business Updates and Service Changes
Customers who are engaged with your business might want to get updates about your business and changes that affect their services, such as new features, upgrades or extras.
In-Store Promotion
Many of your customers might not be aware that they can get discounts and updates via SMS. Providing a number that customers can text to opt in to marketing in your online or physical store can greatly increase awareness of your SMS marketing campaign.
Now that you’ve got some ideas about how to grow your SMS list, let’s move onto the legal stuff — how do you get consent to send SMSes to customers?
Use the links below to get to the information relevant to your market.
- How to Get Consent for SMS Marketing in the USA
- How to Get Consent for SMS Marketing in the UK
- How to Get Consent for SMS Marketing in Canada
- How to Get Consent for SMS Marketing in Australia
How to Get Consent for SMS Marketing in the USA
To send SMS marketing in the USA, you need to comply with rules set out in the Telephone Consumer Protection Act (TCPA) and CAN-SPAM Act. These regulations cover how and when you can contact people, and the correct way to obtain marketing opt-ins. It is important to remember that in addition to these federal regulations, there may be additional rules and requirements from state to state.
TCPA
The TCPA was primarily aimed at restricting cold calls and recorded voice messages, however, it introduces a few rules which also apply to SMS marketing:
Identification
Marketing must be sent using systems that identify the business sending the message and provide contact information, including the number used to send the message.
Privacy
Marketers cannot send marketing messages to consumers before 8am or after 9pm local time without their express consent. Some bulk text messaging providers, such as TextMagic, will automatically adjust your SMS marketing schedule to local time zones.
Additionally, all marketing must respect the National Do Not Call Registry, and maintain their own company-wide Do Not Call list. The best CRMs for small businesses can track and maintain your Do Not Call list across all contact methods.
CAN-SPAM
The CAN-SPAM Act covers all forms of commercial electronic messages, including SMS and email. It shares the same rules on identification and privacy as the TCPA, with the additional stipulation that messages must also include an accurate postal address for your business.
The CAN-SPAM Act also introduces new rules concerning the proper disclosure of marketing opt-ins and the content of messages, as well as consumers’ rights to stop receiving marketing from you.
According to the CAN-SPAM Act, you can be held legally responsible if marketers working on your behalf are using non-compliant methods.
Opting In
You cannot send someone marketing messages without their express consent, even if you already have their contact details from a previous transaction. You need to obtain consent separately for each contact method – having permission to email someone does not mean you also have permission to call or text them.
Consent is not valid unless you clearly explained what kind of messages your recipient is agreeing to receive, and whether they are agreeing to a one-off message or recurring contacts from you.
Identification
All marketing messages must be clearly identified as advertising. Similarly, the subject line of your message should accurately reflect the message’s contents.
Opting Out
Every marketing message you send must contain clear instructions on how to stop receiving future messages. For SMS marketing, the easiest way to do this is to let consumers opt-out by replying ‘STOP’ to your text. Opt-out requests must be honored within 10 working days.
How to Get Consent for SMS Marketing in the UK
In the UK, the rules covering SMS marketing and other communication services are set out by the Privacy and Electronic Communications Regulations (PECR). Most of its rules only apply to unsolicited messages. An ‘unsolicited’ message is anything you send which is not a direct response to a specific customer request. This means that marketing messages are considered unsolicited even if you have the recipient’s express consent to send them.
While similar in principle to US regulations, PECR gives more specific guidelines for SMS marketing compliance:
Identification
All marketing messages must include the name of your business, a contact number and a postal address.
Opting In
When asking people to sign up for SMS marketing, it must be made obvious that they are agreeing to receive marketing messages. This information has to be displayed prominently, including it in your privacy policy or terms and conditions does not count.
To opt in to your marketing, users must make a clear positive action, such as ticking a checkbox in your sign up form. These options cannot be pre-selected or have opted in as the default setting. This is good practice even in countries where it is not a requirement. Pre-ticked opt-ins will only annoy customers and result in a high unsubscribe rate.
Opt-in pages must specifically name the business which will contact recipients — consent to receive marketing from ‘third parties’ or other vague terms is not valid.
Opting Out
People need to have an easy way to opt-out of your marketing messages at any time, ideally via a STOP message.
You cannot ask users to complete complex steps such as filling out forms in order to opt-out, and you are expected to honor any clear indication they want your marketing to stop, regardless of the contact method. Opt-out requests must be handled immediately, with confirmation sent to your recipient.
Record-Keeping
In the event of a dispute, you will need to have records proving your compliance with PECR. This includes keeping records of when your user opted in and what they opted into, as well as records of their opt-out requests.
How to Get Consent for SMS Marketing in Canada
Canada’s Anti-Spam Legislation (CASL) covers email and SMS marketing as well as some uses of social media. In addition to obtaining a consumer’s express consent to send them marketing messages, CASL rules also allow you to message people using implied consent under certain conditions
Implied Consent
You are allowed to send marketing messages to people you have a previous business connection with, for example, someone who made a purchase from your business and provided their contact details. This lasts for two years after your most recent transaction with a customer, after which you will need their express consent to continue sending marketing communications.
Identification
Every marketing message must include your business name, postal address, and an additional contact method. You are allowed to provide this information via a web link.
Opting In
To obtain someone’s express consent for SMS marketing, you must clearly state that they are signing up for marketing messages, and can’t include this permission as part of your privacy policy or other small print.
You also cannot use pre-checked boxes to make opting in the default option. Users need to sign up for marketing via their mobile device and must confirm their subscription after the initial request before you can start sending marketing.
Opting Out
Your SMS marketing must allow recipients to opt-out at any time through a one-step process such as sending a STOP message and also have to honor opt-out requests made through other contact methods.
Record-Keeping
If a recipient disputes giving you permission to message them, you need to have records showing what they agreed to and how you got their permission. A double opt-in system is a great way to ensure you have a record of opt-ins, while also reducing unintentional opt-ins. Similarly, you should also have records of opt-outs.
How to Get Consent for SMS Marketing in Australia
In Australia, SMS marketing is covered by the Spam Act 2003. Like CASL, it allows you to message recipients based on inferred consent, although the definition of this is very different. It also has rules covering the use of address-harvesting software.
Inferred Consent
Under the Spam Act, inferred consent is based on specific existing business relationships. If you have a user’s contact details, you can send them marketing messages which are relevant to their previous purchases or the interests they have expressed to you.
In addition to past purchases, consent can be inferred from subscriptions to your newsletter, signing up for an online service or membership of a loyalty club.
Marketing messages must be relevant to your existing relationship with a customer.
Address-Harvesting Software
Address-harvesting software, or scraping software, is used to collect contact details from online profiles and databases. The Spam Act bans the use of scraping software, and the use of contact details obtained by scraping software.
Identification
All of your marketing texts must include your business name, contact details, and Australian Business Number (ABN). This information cannot change for at least 30 days after you send out marketing.
Opting In
Getting express consent to send SMS marketing requires your recipient to agree to receive marketing through a deliberate action such as ticking a checkbox.
Opting Out
All messages must also include a clear opt-out option, such as sending a STOP message. You can’t charge for use of an opt-out message and will have up to five working days to stop sending the user messages. You also cannot change your opt-out method for at least 30 days after sending a message.
Disclaimer: Please note that this advice is for informational purposes only and is neither intended as nor should be substituted for consultation with appropriate legal counsel and/or your organization’s regulatory compliance team.
