I'm dealing with a steady stream of phone users who are unhappy at having
received unsolicited sms messages.
The OIC considers sms mesages to be covered by the Telecoms Data Protection
& Privacy Regulations, however the DTI and OFTEL take a diferent view. The
difference of opinion is because the Regulatiopns refer to a "call", and as
sms messages are sent as a signal, rather than a call, its possible that
they do not fall within this definition.
Attempts by the Direct Marketing Association to form an SMS Preference
Service have not yet resulted in one being formed - I was involved in their
discussions with the mobile operators between Autumn of last year and this
March.
Our advice to customers is to register their number with the TPS if they do
not wish to receive unsolicited sms messages, and then complain like hell
(to the OIC and the advertiser) when they continue to be sent.
This messy situation is likely to be clarified should a revised Electronic
Communications Data Protection Directive be approved (which may occur later
this year). The aim is to ensure that sms messages can only be sent on a
permission basis.
A recent code of practice issued by the Wireless Marketing Association also
requires its members only to end sms messages if they have the recipient's
prior consent.
Regards to all
Martin Hoskins
Data Protection Manager
One 2 One
-----Original Message-----
From: Dave Wyatt [mailto:[log in to unmask]]
Sent: 15 May 2001 02:11
To: [log in to unmask]
Subject: Mobile Phone numbers and SMS messages
Is an SMS text message (advertising) to a mobile phone when you cannot
positively identify the user, subject to the TPS rules given it does not
appear to be personal data? If you cannot know the user then you cannot
personalise any such message only advertise. e.g. can the phone user please
ring this number.
If I know who I delivered the phone to and assume them to be the user (they
may give phone to another family member) does this make this 'marketing to a
particular individual'?
Given 'No unsolicited calls to lines of subscribers' in Telecoms Data
Protection and Privacy Regs (section 25)
Is an SMS text message defined as a call?
Is there a subscriber that I know the identity of (assume pay as you go
phones)?
Can the company selling my company the phones provide me with all the
associated telephone numbers associated with that batch of phones if they
have also provided me with a fufilment service e.g. captured a name and
address from applicants to enable them to despatch as a contract service
condition regards the sale of the phones to my company.
The objective is to only have a telephone number without knowing a specific
user, thereby leaving the initial advertising outside of DPA. Can the model
be legally constructed and if so does TPS have to be used if you do not know
who specifically is using the phone.
Any views appreciated
David Wyatt
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