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Text Message Marketing - LEGAL Questions & Answers

by Webmarketingmaster
11 replies
There is a LOT of talk about text message marketing on this forum. There are 30 page threads on the topic and many WSO's as well.

What nobody seems to be talking about is the LEGAL aspects of getting into text message marketing.

I went through the long process of starting a mobile marketing company (New website, white label SMS platform, Merchant gateway, etc). Im starting to get some great clients but now Im a bit scarred about the LEGAL issues that could arrise.

QUESTIONS-------------

Q- My whitelabel provider allows uploading "Approved" lists. If one of my clients uploads a list that wasnt really their list..... Can I / will I get sued?

Q- What if the list that is uploaded is 100% opted in, HOWEVER, 2% of the cell phone numbers changed hands since they opted in. This means that 2% of the people getting the messages NEVER really opted in. Do they have a case to sue me and the client?

Q- I have one new client that wants to upload their client list of phone numbers (150,000) and start sending messages. Im a bit scarred to allow them to do this even though Im sure that the list is from people that have actually done business with the client. There will be Im sure some wrong numbers and changed numbers in the mix.

Ive read the Telephone Consumer Protection Act (TCPA) United States Code: Title 47,227. Restrictions on use of telephone equipment | LII / Legal Information Institute

There seem to be many situations where I could get sued even if I am careful to follow the rules.

Is there anyone out there that has REALLY RESEARCHED the legal aspects of text message marketing that would like to share their knowledge?

Lets make this the LEGAL SMS Thread! :-)
#answers #legal #marketing #message #questions #text
  • Profile picture of the author jimbo13
    I'm in the UK so bear that in mind.

    I think you will find the following to be good for you though.

    Q1/A1: If it isn't your clients list they shouldn't be giving you it for upload. Have they stolen it? They are liable to get sued big time. Read my bold paragraph though.

    Q2/A2: Your messages should have a 'SEND STOP TO 12345' disclaimer every now and again. But no you wouldn't be sued as your software can prove the number Opted in but didn't Opt out. By the way the STOP message above should be clear when someone Opts in for the first time if it is a promotion plus it should be on any literature. Have a look at a Newspaper promotion and you will see the legal disclaimer I am talking about.

    Q3/A3: A company that has 150,000 customer numbers will have contracts with T&Cs more than likely stating that their info can be used for Electronic communication purposes, just like your insurance company paperwork will have. Normally a tiny tick box to tick you don't. Ask to see the T&Cs if you are worried, but you won't be sued yourself.

    The best thing you can do that will cover you from unscrupulous clients is this.

    On your own contracts have a lawyer insert a clause stating very clearly that by signing this contract your client is agreeing that all numbers provided have been obtained in good faith and meet all State and Federal Laws for electronic communications.

    I would have this as a separate box, in bold with it's own signature and date in addition to the normal signature and date right at the bottom of the contract.

    Don't scrimp on this and get something off the internet. Get a proper contract lawyer to write this for you. It is worth it.

    This way you are 100% covered.

    Hope that helps.

    Dan
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  • Profile picture of the author Tsnyder
    Originally Posted by Webmarketingmaster View Post

    There is a LOT of talk about text message marketing on this forum. There are 30 page threads on the topic and many WSO's as well.

    Lets make this the LEGAL SMS Thread! :-)
    I have a better idea! Let's all be smart business people and seek
    legal advice from competent professionals, not strangers on message
    forums who offer conjecture and opinion as if it is fact!
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    If you knew what I know you'd be doing what I do...
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    • Profile picture of the author Thrasher66099
      Originally Posted by Tsnyder View Post

      I have a better idea! Let's all be smart business people and seek
      legal advice from competent professionals, not strangers on message
      forums who offer conjecture and opinion as if it is fact!
      I second that motion. Please feel free to give your experiences and let us in on your mistakes so we don't do the same but the actual legal advice should be obtained from professionals.
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      Becoming an internet marketer from the beginning
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  • Profile picture of the author Tsnyder
    For further clarification see this thread...

    http://www.warriorforum.com/main-int...vice-here.html
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    If you knew what I know you'd be doing what I do...
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  • Profile picture of the author briankoz
    I run www.MobileAutoresponder.com and can tell you that prior to even thinking about it, I got a lot of advice from a lawyer that knew a great deal in that area.

    But basically, the mobile text marketing area is fairly new and as such, there are a lot of "best practices" that aren't necessarily all laws yet, but are generally considered to be rules that you should follow to avoid any potential future legal issues.

    Some of these rules are more strict than e-mail marketing, so you have to be super careful with how you obtain leads, how to let them opt-out, etc..

    I would not advise you follow some of the advice here as to "occasionally" include an opt-out option. ALWAYS include an opt-out option, and always make sure that these leads are double opt-in (with e-mail marketing, you can legally and safely use single opt-in).

    And of course, if you're serious about this, you should consult a competent lawyer in the subject (not just some random local lawyer you find). Have a terms of service where you try to put all the risk on your subscribers is not necessarily going to protect you, so you need to do a bit more research first.

    - Koz
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    WebFire.com -- Over 25 Tools to Get Free Traffic, Rankings, Leads, and Exposure!
    MobileAutoresponder.com -- Build a Mobile List and Send Unlimited Text Messages!
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    • Profile picture of the author Webmarketingmaster
      I do understand that the warrior forum isnt a place for legal advice..... however.... find a lawyer that knows this business isnt easy..... not to mention getting a lawyer to give you a strait answer isnt easy either...

      Im just looking for other peoples experience with the legal aspects of text message marketing.

      Thanks... Keep the good info flowing...
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    • Profile picture of the author Webmarketingmaster
      Originally Posted by briankoz View Post

      I run www.MobileAutoresponder.com and can tell you that prior to even thinking about it, I got a lot of advice from a lawyer that knew a great deal in that area.

      But basically, the mobile text marketing area is fairly new and as such, there are a lot of "best practices" that aren't necessarily all laws yet, but are generally considered to be rules that you should follow to avoid any potential future legal issues.

      Some of these rules are more strict than e-mail marketing, so you have to be super careful with how you obtain leads, how to let them opt-out, etc..

      I would not advise you follow some of the advice here as to "occasionally" include an opt-out option. ALWAYS include an opt-out option, and always make sure that these leads are double opt-in (with e-mail marketing, you can legally and safely use single opt-in).

      And of course, if you're serious about this, you should consult a competent lawyer in the subject (not just some random local lawyer you find). Have a terms of service where you try to put all the risk on your subscribers is not necessarily going to protect you, so you need to do a bit more research first.

      - Koz
      Thanks Koz,

      You have a great looking website. Do you allow people to upload their client lists?

      Webmarketingmaster
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  • Profile picture of the author Jay Moreno
    you may also want to read up on the Mobile Marketing Association SMS Best Practices - if you follow closely these strict guidelines you probably wont find yourself on the wrong side of a lawsuit... enjoy all 161 pages!

    U.S. Consumer Best Practices | Mobile Marketing Association

    Don't worry your not alone i read them too - its better to be in the know than trying to plead ignorance!

    PS this is based on Best Practices in the US - different countries may have different views

    PPS the reason i know about this resource is that i also helped a friend setup his own private shortcode from scratch
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    Sorry, I am too busy helping people to think of a cool signature!
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    • Profile picture of the author Webmarketingmaster
      Thanks everyone for all the advice. I did some research and found a local firm that has experience with SMS Marketing law. Im going to call them and set up a consultation.

      I thought that more people on here would have some insight into the laws behind the scenes with text message marketing. There are so many people on this forum that seem to be getting into this niche... I hope they all know what they are doing. There sure are a LOT of lawyers in the US and I know they like to sue people.
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  • Profile picture of the author getmobilized
    Does anyone have a optin solution to the new TCPA,"Telephone Consumer Protection Act" law that went into effect on October of 2013. If any of you programmers want to create something that will meet the legal side of things. It would pay off, I would buy it, and I am sure many others on the forum would as well
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