Spam Texting – Is it legal?

We all receive them.  They drive us crazy and we want them to stop but the question in a lot of people’s minds is “Are they allowed to do it?”.  The simple answer is yes, but it depends on who they are and where they have got your mobile phone number from.

Texts asking us whether we have an accident claim or a PPI claim are legitimate forms of direct marketing as permitted by the Privacy and Electronic Communications Regulations (EC Directive) (Amendment) Regulations 2011 or PECR’s for short.  The PECR’s permit the sending of marketing texts as long as they are not unsolicited and also if they are unsolicited (provided certain conditions are met).

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Unsolicited?

Just because you didn’t to be sent a specific text does not mean the text is unsolicited.  Remember that little box you ticked (or didn’t untick) when you were completing an online loan application?  Well that is often the key to answering this question.  There are a number of different ways the tick box question can be put.  The following are examples :

  1. Where you invite contact from third parties e.g. “I want to receive emails from other companies about XXX.”
  2. Where you have consented to receiving unsolicited texts from third parties e.g. “If you would like us to pass on your contact details to other companies so they can send you details of their offers please tick here ….”

The data collected from these “opt ins” is extremely valuable to those holding it.  They can sell it to third parties who fit the criteria specified in the statement.  The more general the consent statement, the more widely the data can be sold and provided the third party texting you gives you details of how to opt out in the text and disclosed their identity in some way, the texts they send you are not illegal.

Even if you opt out of these statements, the “spam texts” can still be legal if the following conditions are met:

  1. The person sending it has obtained your contact details in the course of the sale or negotiations for the sale of a product of service to you.
  2. The text has to be in respect of similar products and services to those being provided to you.
  3. You have to be given a simple means of refusing further texts – e.g. “text STOP if you do not wish to receive further texts“.

So, for example, if you give your mobile number to a bank in the course of applying for a loan, they can send you direct marketing texts about mortgage or insurance offers they are providing.

But still the buck doesn’t stop there.  Although the PECR’s may be breached by a text marketing company other conditions have to be satisfied before any enforcement action can be  taken.  Enforcement action can include issuing an Enforcement Notice to stop the activity continuing or issuing a Monetary Penalty Notice (or fine).  An example of one of the conditions that must be met in order for an MPN to be issued is that the breach has caused serious damage or distress.  Whilst there may be instances where a text may cause serious distress, how may of us can seriously say these texts are seriously distressing or damaging, rather than just an irritant?

As ever, we’d love to hear your views.

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