Oftel - faqs



	faqs



			Unsolicited text (SMS) adverts on your mobile phone Key points Under the Telecommunications (Data Protection and Privacy) Regulations 1999 ("the Regulations"), individual subscribers (consumers, sole traders, and (except in Scotland) partnerships) cannot be telephoned (live operator), for unsolicited direct marketing purposes, if they have previously notified the caller that such unsolicited calls should not be made on that line. In addition, individual subscribers can also register with the Telephone Preference Service (TPS). The TPS is an opt-out scheme run by the Direct Marketing Association on behalf of the Director General of Telecommunications. The Information Commissioner (IC) takes the view that SMS text messages should be regarded as telephone calls for the purposes of the Regulations. Individual subscribers who do not wish to receive unsolicited SMS text messages for direct marketing purposes can therefore register with the TPS. The IC enforces the Regulations, including the TPS. Corporate subscribers (legal persons and (in Scotland) partnerships) are able to "opt out" of receiving unsolicited direct marketing SMS text messages on an individual basis under the Data Protection Act 1998 but NOT by registering with the TPS. They should contact the IC. The use of telephones (live operator) for unsolicited direct marketing is covered by the Telecommunications Data Protection Directive 97/66/EC, which is implemented in the UK by the Telecommunications (Data Protection and Privacy) Regulations 1999 ("the Regulations"). Under the Regulations, individual subscribers (consumers, sole traders, and (except in Scotland) partnerships) can "opt out" from receiving unsolicited direct marketing telephone calls. This means that individuals cannot be telephoned (live operator), for unsolicited direct marketing purposes, if they have previously notified the caller that such unsolicited calls should not be made on that line. Direct marketers, that phone individuals who have previously notified the caller that such calls should not be made on that line, will be in breach of the Regulations. Notwithstanding the above, individual subscribers can also register with the Telephone Preference Service (TPS) (see below). The TPS is effectively an additional privacy safeguard available to individual subscribers. Although it has not been clear in the past whether SMS text messages are actually 'telephone calls' in the sense that has been traditionally understood, the IC takes the view that SMS text messages should be regarded as telephone calls for the purposes of the Regulations - although they are not explicitly covered by the Telecommunications Data Protection Directive 97/66/EC. Individual subscribers who do not wish to receive unsolicited SMS text messages for direct marketing purposes can therefore register with the TPS. Corporate subscribers (legal persons and (in Scotland) partnerships) are able to "opt out" of receiving unsolicited direct marketing SMS text messages on an individual basis under the Data protection Act 1998 but NOT by registering with the TPS. Telephone Preference Service The TPS is a list (or file) of individual subscribers who do not wish to receive unsolicited SMS text messages for direct marketing purposes. The Direct Marketing Association (DMA) controls the list on behalf of the Director General of Telecommunications (Oftel). A direct marketer will be in breach of the Regulations if they contact any subscriber on the list. If a subscriber's mobile telephone number has been registered on the TPS for over 28 days, and they are still receiving unsolicited SMS text messages for direct marketing purposes, the subscriber can complain to the TPS. The TPS will contact the company concerned and then include the complaint on the regular report it sends to the IC. We would advise individuals and companies, who do not want to receive unsolicited SMS text messages for direct marketing purposes, to contact the TPS for further advice and information: Telephone Preference Service DMA House 70 Margaret Street London W1W 8SS Tel: 0845 070 0707 Fax: 020 7323 4226 Email: tps@dma.org.uk Web: www.tpsonline.org.uk Information Commissioner The Regulations, including the TPS, are enforced by the IC. We would advise individuals and companies, who believe that they have been aggrieved by the alleged contravention of the Regulations, to contact the OIC for further advice and assistance: Information Commissioner Wycliffe House Water Lane Wilmslow Cheshire SK9 5AF Tel: 01625 545 745 Fax: 01625 524 510 Email: data@dataprotection.gov.uk Web: www.dataprotection.gov.uk Premium rate service numbers We are aware that certain unsolicited SMS text messages sent for direct marketing purposes endeavour to generate return messages to Premium Rate Service (PRS) numbers. This issue has been drawn to the attention of the Independent Committee for the Supervision of Standards in Telephone Information Services (ICSTIS) - the organisation responsible for regulating the content and promotion of PRS. We would advise individuals or companies, who have received an SMS text message with a return message to a PRS number, to contact ICSTIS for further advice and information: ICSTIS 4th Floor Clove Building 4 Maguire Street London SE1 2NQ Tel: 0800 500 212. Fax: 020 7940 7456 Email: helpline@icstis.org.uk Web: www.icstis.org.uk The Directive on privacy and electronic communications 2002/58/EC The Directive is one of the measures that arose from the European Commission's 1999 Review of the regulatory framework for electronic communications. It concerns the processing of personal data and the protection of privacy in the electronic communications sector. The overriding aim of the Directive is to take account of technological changes and to make the provisions as technology-neutral as possible. The Directive can be accessed here. It makes a number of changes to existing provisions which are currently enshrined in the Regulations. Among the main changes and the key features of the Directive is the regulation of unsolicited commercial e-mail, the definition of which includes SMS text messages. The Department of Trade and Industry (DTI) must implement the Directive by 31 October 2003 at the latest. DTI would welcome comments on the UK's approach to implementation. Information about the DTI's consultation is available on the DTI web site here: Information can also be obtained by e-mailing cdpd@dti.gsi.gov.uk or by phoning 020 7215 1189. Other information Advertising Standards Authority The Advertising Standards Authority (ASA) is the independent, self-regulatory body for non-broadcast advertisements, sales promotions and direct marketing in the UK. It administers the British Code of Advertising, Sales Promotion and Direct Marketing ("the CAP Code") to ensure that advertisements are legal, decent, honest and truthful. Advertisements and promotions include, amongst others, SMS text messages. The CAP Code is written by the advertising industry through the Committee of Advertising Practice (CAP). All the main trade and professional bodies representing advertisers, agencies, service suppliers and media owners are members of CAP. In addition to writing the Code, they agree to enforce it. If an advertiser is not a member of one of the CAP trade bodies, they will be required to observe the CAP Code and the rulings of the ASA Council. ASA has a number of sanctions it can use to ensure that advertisements, sales promotions and direct marketing that break the CAP Code are amended or withdrawn. We would advise individuals and companies, who feel that they have been misled or offended by a non-broadcast advertisement, to contact ASA for further advice and information: The Advertising Standards Authority 2 Torrington Place London WC1E 7HW Tel: 020 7580 5555 Fax: 020 7631 3051 Web: www.asa.org.uk Mobile Marketing Association The Mobile Marketing Association (MMA) is a global association that strives to stimulate the growth of mobile marketing and its associated technology. MMA members include, amongst others, operators, service providers, as well as any company focused on the potential of marketing via mobile devices. MMA initiatives actively establish industry-wide, national and international guidelines for mobile marketing and advertising. Further information regarding the MMA can be found at www.mmaglobal.com (If you have been following the steps to contact Oftel and this FAQ has not helped you can proceed to Step 3. However, please note that this FAQ represents Oftel's advice on this issue and should you contact us there will be nothing substantive that we can add. If you wish we can log your concern. This will then form part of the trend analysis work that Oftel carries out from complaints it receives. If you wish to log you concern with Oftel then click here.