Why you need to stick to your SMS marketing message limit
When someone signs up to your SMS marketing list, do you tell them how many messages you’ll send them? SMS best practices indicate that you should let them know either in an SMS message confirming their opt in or elsewhere on the materials they see when signing up. It sometimes looks like this:
Thanks for signing up! We’ll send a max of 5 msgs/mo. Msg&Data rates may apply. Questions? Reply HELP.
That message is like a promise. The person signed up agreeing to 5 SMS messages per month from you and that’s it. But is it really a big deal if you send more than 5? It might be.
Victoria's Secret is in trouble
Recently, the famous lingerie brand Victoria Secret has been charged with violating the Telephone Consumer Protection Act (TCPA), roughly the US equivalent of the EC directive. A man signed up in May of 2015 to receive offers from the brand which promised no more than five per month. In November of 2015, he claims he received 97 SMS marketing messages, all on the same day.
No matter how you look at it, 97 is much larger than five, especially if the messages all came on the same day. When I first saw the case, I assumed that perhaps the company had gotten a bit too enthusiastic in its promotions leading up to Black Friday. Given the facts though, they may have had some technical glitch that caused the issue. But so far Victoria’s Secret is remaining silent on the event, indicating they won’t comment on active litigation.
According to an article on Mobile Marketing Watch, “The lawsuit does not indicate if all the messages were identical, but the complaint does say that the messages all contained ‘a generic non-personalized advertisement.'” I think that means the chances of either human error, or a technical glitch, is very likely.
They lose either way
US law governing spam and what people can do about is much different than the UK. The lawyers for the man have filed to make the case a class action lawsuit. This means that everyone on the Victoria’s Secret list that received those messages can now claim to be a victim (assuming the case is granted class action).
The one thing that’s pretty certain is that the company will eventually settle a class action lawsuit – even if they claim no wrongdoing. It will cost them millions, most of which will go to the lawyers on either side (It’s generally cheaper to settle than to try and win a case). The individuals in the class action may get some small compensation in the form of discounts or money.
This may happen regardless of why the messages were sent, or who takes the blame in the end (third party marketing company, employee, or the company).
In addition, the TCPA may fine the company if they determine that people did not consent to receive these extra messages. This is the first case in the US where someone who already opted in, actually acknowledges he gave permission, has then filed against a company for exceeding the stated amount of messages he agreed to initially. How the case will be handled is something everyone is watching (if you send messages to the US, you should be too!). Will they be held accountable even if it was a glitch that happened beyond their control? What if it’s as simple as an employee typing in the wrong information into a scheduler? Whatever the decision, the investigation may cost them subscribers and certainly will require some work to rebuild their marketing reputation.
What to do in your marketing
I couldn’t find any similar complaints with the ICO in the UK. Most of the cases seem to be clearly spam due to the number of complaints they receive. I can’t even guess how a similar situation in the UK would be handled by the ICO (though I do think they’d investigate if they had enough complaints).
The best way to avoid finding out what would happen, is to make sure you stick to the number of messages you said you’d send. Put processes in place to ensure there are no typos, or other human error that might lead to excessive messaging that will anger your list.
All businesses are subject to the law when it comes to advertising and marketing. Companies cannot make false claims or mislead consumers via advertising materials, for example. Designed to protect consumers and commercial clients, the law regulates most forms of marketing in some way. With companies carrying out various forms of marketing activity, it can be difficult to keep on top of the relevant laws and guidelines. By working with SMS marketing experts, however, you can ensure that your marketing campaigns are fully compliant with the necessary laws and that you’re able to connect with your target audience lawfully and effectively.
Yet another company (Quigley and Carter Limited) have been fined by the ICO for not having permission to send SMS messages. In this case, they had outsourced their marketing to a third party who then sent messages on their behalf. So is staying compliant with the regulations regarding SMS messaging so difficult? It doesn’t have to be.
The first thing to remember is that legally, you must give the customer the chance to both opt-in and opt-out of your SMS campaign - but the good news is people are happy to opt-in - 49% of them according to a 2014 survey. So all you need to do is stay compliant and follow some basic guidelines to grow your list.
Electronic marketing is a tricky thing. There are rules and regulations you need to follow, and it can all seem pretty intimidating at first. To help you get started, I’ve gathered five of the most commonly asked questions about SMS marketing and the regulations and summed them up here.
When conducting an SMS marketing campaign, there are a number of compliance regulations you should be aware of, to ensure that your communications are as effective as possible, without being potentially damaging to your campaign or your business. If you're marketing to a UK market, the UK Privacy and Electronic Communications Regulations (PECR) gives clear guidelines on what falls within the rules. Here we've highlighted some key tips to ensure your next campaign is compliant, based on common questions that arise.
SMS marketing is very different to most other more traditional marketing tools, specifically because of its short-form, text only nature. This certainly shouldn't put you off though. We have put together our guide to both the best things about SMS marketing and some of the potential problems, and how to work around them.