Digital Marketing Strategy

Those Annoying SMS and Email Messages may be Illegal!

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behind_barsIt’s 8:45 pm and you are anxiously awaiting a text message from that special person to know if your date is still on. Your heart skips a beat as your phone comes alive with your SMS alert’s electronic sound and vibrating antics. You grab your phone to check the message only to see that it’s an unsolicited commercial communication. In other words, a commercial message from a vendor trying to sell you some product or service, where in most cases you didn’t subscribe to receive this information.I will omit your possible reaction to the text message you just read in order to ensure that this article remains fit for “airplay”. The same scenario can be applied to an email communication.

Companies that send these types of communication might be committing an offence based on the Electronic Transaction Act passed in April 2007. In Section 29 of the act entitled “Unsolicited commercial communications. Supply of goods, services or facilities pursuant to transactions conducted electronically,” it states that:

29. – (1) A person who sends unsolicited commercial communications to consumers shall give to a consumer to whom any such communication is sent-

(a) the opportunity to decline to receive any further such communications from that person; and

(b) upon request by the consumer, the identifying particulars of the source from which that person obtained the consumer’s contact information or other personal information.

(2) A person who fails to comply with subsection (1) commits an offence.

(3) No agreement is concluded where a consumer fails to respond to an unsolicited commercial communication.

(4) A person who sends an unsolicited commercial communication to a consumer who has communicated to that person that the consumer does not wish to receive any such communication, commits an offence.

The most common breach that I have noticed has to do with section 29(1)(a) which clearly states that persons must be given “the opportunity to decline to receive any further such communications from that person”. This means that if I receive an unsolicited commercial communication, such as a text message or email, I must have the option to opt out or unsubscribe. Most email marketing tools provide the option for recipients to unsubscribe from receiving further emails. Legal SMS campaigns usually provide recipients with the option to reply with a particular code or message to indicate they want to unsubscribe.

In sections 32, 34 and 35, the act goes on to state what recourse you can take, the resulting penalties and who in particular will be charged, or in other words, who can be sent to prison.

32. A consumer who alleges that a supplier has failed to comply with any of the provisions of this Part, may make a complaint to the Consumer Affairs Commission in accordance with section 7 of the Consumer Protection Act.

34. – (1) A person who contravenes any provision of this Act or any regulations made hereunder commits an offence.

(2) A person who commits an offence under this Act or any regulations .made hereunder, shall be liable upon-

(a) conviction before a Resident Magistrate to a fine not exceeding one million dollars or to imprisonment for a term not exceeding one year, or to both such fine and imprisonment; or ELECTRONIC TRANSACTIONS

(b) conviction before a Circuit Court to a fine or to imprisonment for a term of not exceeding five years, or to both such fine and imprisonment.

35. Where a body corporate commits an offence under this Act and the offence is proved to have been committed with the consent or connivance of, or to be attributable to any neglect on the part of, any director, manager, company secretary or other similar officer of the body corporate, or any person purporting to act in any such capacity, that officer or person (as the case may be) as well as the body corporate shall be liable for the offence.

So there you have it; you do have recourse if you are upset about wasting your heart flutter on a message from a vendor instead of that special person.

Don’t be shy about giving me your feedback now. That is definitely legal.

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January 2018
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