SMS marketing may be cut off by new e-commerce law

The Information Commissioner is warning the government to include text message marketing in its implementation of the E-Commerce Directive

Unsolicited text message marketing seems set to die an early death under the impending Electronic Communications Directive due to be enforced later this year, which will make it obligatory for all companies to include their registration and contact details in all commercial communications.

The Office of the Information Commissioner is warning that it would be folly for the government to exclude SMS marketing from a directive that is intended to cover all forms of electronic communications. The public consultation paper published by the Department of Trade and Industry (DTI) last Friday acknowledges that current laws about bulk email advertising are ambiguous, but makes no specific reference to text message marketing.

"With the growth and convergence in communication technologies, it would be wholly illogical to have certain rules applying to one technology such as email, but not for another exactly the same in character and words such as text messages," said Phil Jones, assistant information commissioner. "The DTI needs to be aware of this...and should seek to make the Directive technology neutral."

Text messages are currently limited to 160 characters, meaning that a company's registration details would take up the majority of the space. The EU E-Commerce Directive introduces four new rules to govern unsolicited commercial communications, in order to allow individuals to deal with unwanted intrusion more easily. Article 5 requires all advertisers to give at least their name, geographic address, email contact details and the particulars of any supervisory body to which they belong, so that recipients of unwanted emails will be able to opt out of such communications in the future.

"The lack of space in text messages is clearly a limiting factor, but it would seem mad to me to come up with completely different rules for this technology," said Jones.

The DTI consultation paper, which is open for submissions until 2 November, acknowledges that the Act needs to be clear about the various forms of electronic communications, and suggests that all technologies should adhere to the same rules and regulations.

"It is arguable whether this requirement applies to equivalent electronic communications such as emails and publications on Web sites. We consider that the Act should apply regardless of the method of delivery. In any event, the Act should be clear in this respect," the draft document reads.

The DTI has until 16 January, 2002 to implement the requirements of the EU Directive.

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