SMS Gateways, Spam and the Law – Part 2

In the previous post, I mentioned that the waters are murky regarding what is allowed and not allowed in sending mass SMS. On the surface it seems simple – if the information in the ITU’s ICT regulation toolkit document is anything to go by, then it follows that the opt-in approach is adopted by the EU directive, Australia and others while the opt-out approach is allowed in the US, Japan and South Korea.

However, judging by class actions against companies that used opt-out SMS marketing in the US, it seems the courts in the US don’t buy the ITU’s assessment of what is considered legal use… reading tatangos’ blog, in this article CEO Derek Johnson not only recommends an opt-in, but a double opt-in, which means the user not only has to send a request to receive the messages, but has to reply to a text in order to confirm this wish…

The fact that opt-out doesn’t cover you in the US is evident in this post on the same blog, where NASCAR HOLDINGS sent an opt-out SMS campaign and is in the process of a class action lawsuit from someone. The plaintiff is actually seeking damages for two violations – one for receiving the first SMS and another for receiving the confirmation SMS after requesting not to receive further SMS communications from them…

The way I see it, you should get your recipients permission before sending them SMS commercials – not only because it keeps you on legally safe ground but for the same reason you don’t (I hope) throw garbage out your car window. In the long run, it makes the world you live in a bit less fun to be in, and the fact that this won’t convince the¬†cynical, doesn’t make it any less true.


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