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SMS Marketing And The Law

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SMS marketing can be a powerful component of your growth strategy. However, before proceed with SMS, make sure you’re compliant. Like email, SMS is a regulated channel with its own specific rules and requirements. To be successful, it is important to take a look at these must-know regulations for SMS marketing in the US.

Why Following SMS Marketing Regulations is Vital

Regulations are in place to protect people from unwanted messages. SMS marketing regulations ensure the consumer is in control of what messages they receive and how many they receive.

As with other automated marketing channels, SMS for marketing is regulated. Legal requirements vary depending on global regions and national laws, and the consequences for failing to comply could result in criminal lawsuits.

Without an understanding of legal requirements and proper protocol, businesses may send unsolicited SMS messages unknowingly.

Following the law will ensure your business is marketing to consumers purposefully, ethically and effectively. Plus, compliance is mandatory if you don’t want to get blacklisted.

Start thinking about compliance with these key SMS marketing regulations by using this concise summary.

Consent

Consent eliminates subscriber confusion. It is very likely that a confused subscriber will opt out, and in most cases, that opt-out results in lost revenue. Smart SMS marketers should take significant measures to inform subscribers of what they are agreeing to when they give their consent to messaging.

SMS consent must be clear and comprehensive. In order to opt-in to receive SMS messages from a business, subscribers must give their permission. You must maintain documentation of the consent-getting process, including message history and time stamps. It's crucial to understand that having a previous business relationship does not imply consent, and that having a secure location to store this data is essential.

Terms of Service should be updated to include: Those who opt-in must have access to legal documentation, including privacy policies.

It's important to keep in mind that the consumer has the right to revoke consent at any time, and it's best practice to provide an opt-out option with each message.

Regulations for SMS Marketing in the United States

Two Acts in the US regulate the permissible and prohibited uses of SMS marketing.

These laws were all developed to safeguard consumers from unsolicited marketing. The TCPA focuses on the authorization required to send SMS advertisements to consumers. Consumers are better protected from receiving unwanted advertisements thanks to the Can-Spam Act. Together, they offer a strong foundation for companies to develop their advertising initiatives in a considerate and legal manner, always keeping the consumer in mind.

Telephone Consumer Protection Act

The Telephone Consumer Protection Act (TCPA) is a federal law in the United States that mandates businesses obtain express written consent from customers before sending them marketing text messages on mobile devices.

It's crucial to understand that in order to comply with the TCPA, you must make it clear to prospective SMS subscribers that by signing up for your text program, they are consenting to receive ongoing automated text messages. This consent language cannot be hidden at the bottom of your sign-up form, on a landing page, or on a page that users must navigate to. It must be prominently displayed and nearby the call to action.

How to Express Consent from Consumers and Promote TCPA Compliance

Consumers must be made aware of the messages they will receive as soon as they choose to participate in SMS marketing campaigns. In order to proceed, they must also consent to receive these messages on their mobile device.

Listed below are a few TCPA-compliant methods for gathering SMS marketing opt-ins:

Enabling double opt-in and sending an introductory message to confirm is a best practice for any SMS sign-up method you decide to use. For instance, an automatic SMS message with the subject "Welcome to XYZ product reminders" can be sent to a prospective subscriber after they have entered their phone number. Please respond with a "Y" so that we can make sure to keep you informed as soon as we make changes.

Being open and honest with your subscribers is crucial. Sending messages that address:

TCPA Exceptions

Because SMS marketing messages are subject to different regulations than other types of messages, you should always be cautious about the content and delivery of your text messages.

Examples of TCPA text message exemptions include:

CAN-SPAM Act

The CAN-SPAM Act reflects the rules in the TCPA and is the primary text spam law in the US. Sending unsolicited text messages to cell phone numbers is prohibited by the CAN-SPAM Act, which is a regulation by the FCC on commercial text messages sent to mobile devices. The term "robotexts" also applies to these unwanted messages. Additionally, messages must clearly identify themselves as advertisements to the reader.

Similar to email, businesses must give customers clear information that makes it simple for them to unsubscribe. It's crucial to remember that this Act only covers commercial messages (advertisements), not any messages pertaining to a current transaction or relationship.

Business emails are sent for a variety of reasons, most of which fall under the transactional (relationship) and commercial categories. Commercial content, such as that found on a website run for business purposes, advertises or promotes a commercial good or service. Transactional facilitates an already-agreed-upon transaction or informs a customer about a transaction that is currently taking place, such as an order confirmation, warranty or safety production information, account balances, employee benefits, or shipping details. Your message must adhere to CAN-SPAM guidelines if it is solely commercial in nature.

The FCC has since recognized the significance of SMS marketing compliance and extended the CAN-SPAM Act regulations to text messages, even though this act was originally designed to apply to emails because SMS had not yet been invented.

Protecting Children With COPPA

The Children's Online Privacy Protection Act (COPPA) is a federal law designed to restrict how website owners can collect and use personal data about children.

According to COPPA, website owners must post a clear privacy notice on their home page and throughout the rest of their website. where user data is collected. The privacy policy should specify who is maintaining and collecting the data submitted to the website, give their contact information, describe how the data will be used, and indicate whether or not the data will be made available to third parties. Additionally, COPPA mandates that website owners obtain "verifiable parental consent" before collecting or using children's personal information. Even if parental permission has already been given once, the site owners must re-ask permission before making any changes to their privacy policies.

When gathering personal contact information to request consent, ensure a child's safety, or fulfill a single request from a child (as long as the data is immediately deleted afterward), exceptions to COPPA's parental consent requirements are permitted.

The majority of businesses that operate websites aimed at children under 13 are aware of their obligations under the COPPA Rule, according to the FTC. However, you might also be required to comply with COPPA if you manage a website with a general audience or run an ad network, plug-in, or other third-party service used by kid-directed websites.

As COPPA also applies, it's crucial to be aware of best practices when using SMS marketing to inform parents about things like kids' products.

SMS Marketing Regulations in Canada

The Canada Anti-Spam Legislation, also known as CASL, was enacted in Canada in 2014. It resembles the Telephone Consumer Protection Act (TCPA) of the United States.

Businesses that communicate with customers via electronic messages are required by the CASL to obtain their consent, provide identification details, and provide an unsubscribe option.

There are two types of consent: implied and expressed. When a customer gives or discloses their information to a company, it is implied that they are giving their consent. A customer's express consent to receive electronic communications from a business, including SMS marketing, is referred to as their express consent.

SMS Best Practices

The Cellular Telecommunications Industry Association (CTIA) is one of the best resources for information on SMS marketing best practices. The TCPA rules are in line with the CTIA guidelines, which were developed after extensive consultation with key industry players. Although the rules are not enforceable, they offer a solid foundation for carrying out SMS marketing properly. The CTIA's Messaging Principles and Best Practices and Short Code Monitoring Handbook contain comprehensive recommendations.

The CTIA requires explicit opt-in consent, just like the TCPA, and privacy information cannot be obfuscated or buried on the website. Additional suggestions include:

Regulations for SMS marketing in the CSA, APAC, and EMEA regions

Businesses must be aware of local laws when using SMS marketing because it is still a global strategy. The majority of developed countries must abide by the SMS messaging regulations set forth in the USA. Additionally, some regions have particular compliance standards that companies must adhere to.

EMEA

While many of the US regulations apply globally, the regions of Europe, the Middle East, and Africa do adhere to additional e-communication rules.

General Data Protection Regulation (GDPR)

To ensure more uniform consumer and personal data protection across EU countries, GDPR requirements apply to every member state. The GDPR has important requirements, some of which are:

To protect the processing and collection of individuals' personal data, the GDPR mandates a benchmark set of standards for businesses that handle the data of EU citizens.

Privacy and Electronic Communications Regulations (PECR) and Data Protection Act

Regulations in the U.K. complement and integrate the GDPR. They are the Privacy and Electronic Communications Regulations (PECR) and the Data Protection Act.

The PECR is applicable to website tracking (using cookies, for example), security measures, and privacy rights.

The Data Protection Act governs how companies can store and use the personal data of customers. Personal data must be used "fairly, legally, and transparently" in accordance with this act. Data can only be used by businesses when it is appropriate, and it cannot be kept for longer than is deemed necessary.

Customers have the right to know how their data is being used, as well as to have it updated or deleted, adding to the GDPR principles.

Australian Communications and Media Authority (ACMA)

The ACMA is responsible for making sure that media and communications benefit all Australians. It is in charge of regulating telecommunications, the internet, radio communications, and broadcasting, including SMS marketing.

There are two types of consent under ACMA. The interesting nuance here is that, in contrast to many other nations, a previous business relationship can qualify as consent. It is not, however, advised to do so.

Contrarily, express consent is consent that has been obtained through a variety of opt-in processes, including web forms, contracts, IVR, or keyword campaigns.

Implied consent is a type of consent that results from an already-existing relationship with the subscriber, making it possible to infer that it would be reasonable to assume that the subscriber would be interested in getting in touch with the company via SMS.

Regulations for SMS Marketing in APAC

The Consumer Rights Protection Law, the Decision on Strengthening Online Information Protection, and the Administrative Provisions on Short Message Services are among the laws that govern SMS marketing in China and the Asia-Pacific region.

SMS can be used to request consent, but this is not a region-specific best practice. The compliance rules that do apply include:

CSA

With little to no laws or enforcement of typical North American rules and best practices, the regions of Central and South America (CSA) are still regarded as SMS's wild west. In most CSA countries, the sending of religious or political content is prohibited.

When marketing in a region with few compliance regulations, like Latin America, it’s essential to follow the general rules of thumb to ensure you are protected.

Conclusion

In summary, these general guidelines include obtaining written consent, maintaining thorough records of consent, observing quiet hours, clearly outlining opt-out and help options, and posting privacy policies where consumers can easily see them. <br><br>It is not the intention of this article to offer legal counsel. Due to conflicting rulings from the Federal Courts, many of the laws governing SMS marketing are unclear. Be sure to consult with your legal team or a lawyer before launching your SMS marketing strategy as the laws are still being defined.

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