3 Legal Best Practices for Mobile Marketing
If you think mobile marketing seems a lot like Internet marketing, think again, especially when it comes to the laws governing consumer outreach and database building in the mobile space. They're very different.
To sort these legal issues out, a panel at the Direct Marketing Association’s Mobile Marketing Day in New York on Feb. 26 offered three key legal best practices marketers should follow when launching loyalty programs with short message service (text messaging), using SMS to build their databases or launching mobile Web sites.
The panelists were Andrew B. Lustigman, principal attorney at the The Lustigman Firm; Helen Mac Murray, an attorney from the law firm Mac Murray, Cook, Petersen & Shuster; and Jodi Sangster, vice president of global compliance for the DMA. Key best practices included the following:
1. Opt-in specifically for SMS. Get specific consent to contact people via SMS, Lustigman advised. To illustrate the severity of not heeding to this practice, he explained how Timberland, the footwear, apparel and accessories marketer, agreed to pay $7 million last year to settle a text message-related class-action lawsuit. The complaint was initially filed in the U.S District Court for the Northern District of Illinois and alleged that Timberland engaged in a marketing campaign in which tens of thousands of unsolicited text message ads were sent to consumers in the U.S.
After getting the consent in writing, as opposed to prechecked boxes, keep a record of the fact that you have it. “The burden of proof is for you to prove,” Sangster said. “If something goes horribly wrong here, it’s for you to prove that you have consent. Keep a record of where that consent came from and how you got it.”
The opt-in process also has to be started via another channel. “You cannot send text messages asking people if they’d like to receive further text messages,” Mac Murray said. “Start the process either by an e-mail, a telephone call or by something in writing when you first contact customers.”
2. Standard rules of advertising law still apply. “A lot of people think that mobile is the Wild, Wild West. But standard rules still apply,” Lustigman said.
Be clearer than usual, and make sure your general disclosures and material terms are written in ways people can understand. “That’s not easy to do when you only have 160 characters,” Lustigman said, referring to the amount of space a marketer has on the small screens they’re using when engaging in mobile marketing.
3. Make it easy to opt out. While texting "STOP" is an easy way for consumers to opt out of having SMS messages sent to them, that's not the only best practice. "You have to have the ability to easily opt out while online,” Lustigman said.