New technologies are available to marketers almost everyday. The toolkit of today’ssavvy marketer would seem like magic to the “Mad Men” of the 1960’s. Unfortunately,the law does not change at the same rapid pace as technology. This creates someuncertainty and no one wants to end up as a test case in court over a mobile campaign.Avoiding the following 10 legal landmines will help keep your mobile marketingcampaign out of hot water and in the minds of consumers where it belongs.
1. Ignoring Generally Accepted Privacy Principles (GAPP).
Why this is a problem: In the U.S., Privacy laws are spread across several different
pieces of federal and state legislation making compliance confusing and difficult. GAPP
and its framework make compliance much easier.
How you can avoid this problem: Familiarize yourself with each of the GAPP principles.
Make sure your mobile marketing campaign complies with the GAPP framework.
2. Ignoring the MMA Code of Conduct
Why this is a problem: The MMA Code of Conduct is the leading example of industryself-regulation and mirrors many of the GAPP principles. Ignoring the MMA Code ofConduct puts not only your campaign at risk but also puts the entire industry at risk ofincreased federal regulation.
How you can avoid this problem: Familiarize yourself with the MMA Code of ConductMake sure your mobile marketing campaign complies with it.
3. Not getting approval of your mobile campaign from wireless carriers
Why this is a problem: Some messages to wireless devices are covered under CAN-SPAM and others, according to a recent California case, under the TCPA. For thesereasons and customer service concerns, wireless carriers review and approve everybroadcast mobile campaign over its network. If your campaign isn’t approved, thecarriers may block it.
How you can avoid this problem: Using a leading aggregator or a short code from theCommon Short Code Administration website, will simplify and expedite carrier approvals.
4. Short cutting your legal review/clearance process because “it’s only a text”.
Why this is a problem: FTC regulations apply to ads no matter how they are delivered.
In fact, mobile campaigns are under a microscope now because of heightened privacyconcerns and because additional charges apply for many consumers when they receivemobile ads.
How you can avoid this problem: Treat your mobile campaigns just like any other ad ormarketing campaign and use the same clearance process prior to launch. Factor in theadditional requirement for approval/clearance by wireless carriers.
5. Cutting out ad disclaimers because you don’t have room for them
Why this is a problem: Unfortunately, “I didn’t have enough room” is not a valid defensein a lawsuit. If your ad requires an ad disclaimer, you’re obligated to provide it. Just askthe pharmaceutical companies who received FDA warning letters for making claims inGoogle Adwords without the required disclaimers.
How you can avoid this problem: Revise the content in the mobile ad/text message sothat it does not require a disclaimer or use mobile messaging as a tool for gathering opt-ins and information and not for pushing ad content.
6. Thinking you won’t get sued if you send an ad via text to a cell phone without permission. You will.
Why this is a problem: Several litigation firms who specialize in representing consumerswith claims under the TCPA are now focusing on class action law suits for the receiptof unauthorized text messages. Many of these same firms previously brought classaction “junk fax” suits under the TCPA.
How you can avoid this problem: Develop your own opt-in list with opt-in documentationfor every mobile marketing message you send. Don’t rely on third parties to do yourhomework.
7. Sneaking in a mobile opt-in on another registration.
Why this is a problem: The TCPA requires the express consent of a consumer beforea mobile marketing message is sent. The 9th Circuit Court of Appeals held in a recentcase that an opt-in to receive messages from a company’s “affiliates and brands” did notconstitute express written consent to receive a message from someone who purchasedthe opt-in list.
How you can avoid this problem: Develop your own opt-in list with opt-in documentationfor every mobile marketing message you send. Don’t rely on consents given to thirdparties.
8. Ignoring consumer complaints.
Why this is a problem: 73% of FCC complaints in the first quarter of 2009 regardingwireless services were related to unsolicited marketing calls or messages. FCCcomplaints are easy for consumers to file. If you don’t resolve a consumer complaintquickly, often the next step is a complaint to the FCC. This can lead to increasedindustry regulation or inquiries into your specific marketing practices.
How you can avoid this problem: Assign a specific person or group to addressconsumer complaints regarding your campaign quickly.
9. Violating GAPP using Bluetooth proximity marketing.
Why this is a problem: Even if a consumer isn’t charged for receiving a messagevia Bluetooth, pushing unsolicited content onto a mobile device via Bluetoothcan seem as invasive to a consumer as receiving an unwanted text message.
How you can avoid this problem: Familiarize yourself with each of the GAPP principles. Make sure your Bluetooth proximity campaign complies with the GAPP framework.
10. Ignoring contest and promotion rules because it is easy to conduct a contest via a mobile device.
Why this is a problem: State and Federal laws and regulations regarding contests, sweepstakes and lotteries apply to no matter how the promotion is delivered.
How you can avoid this problem: Treat your mobile promotions just like any other promotion. Use the same legal review and clearance process prior to launch.
Tammi Franke
Fitzgerald & Hewes LLP
550 West Van Buren St.
Suite 1450
Chicago, Illinois 60607
office: 312.447.2900 ext. 2903
email: tfranke@fitzhewlaw.com
blog: http://tammifranke.blogspot.com
This article was prepared for informational purposes and is not legal advice. You shouldnot act upon this information without seeking advice from a lawyer licensed in your ownstate or country.
