New to Text Marketing? Here are Some Laws to Keep in Mind.

SMS marketing is easily one of the most popular marketing methods used by small, local businesses and larger companies alike. Through SMS marketing, you send promotional text messages to your customers to help grow and improve your business. 

But businesses cannot just send text messages to any number or person they want. There are various laws (including a number of new and changing privacy laws) and other guidelines governing texting, including who you can send to and how , which every business needs to be familiar with. 

For your convenience, we’ve highlighted some of the most relevant laws and regulations in the US, Canada, and Australia  relating to text messages below, along with a few points to keep in mind. This, of course, is not a complete list of every law, rule, or regulation that may apply to your situation, including the locations where your business operates, so be sure to consult with your own legal counsel before beginning any text message or similar marketing effort.

Text Messaging Laws and Regulations by Country

United States 

Telephone Consumer Protection Act (TCPA) & the National Do Not Call (“DNC”) Registry requirements

The TCPA is a US federal law that was enacted in 1991 to protect consumers from certain invasive calling practices. Over time, courts and regulators have interpreted the statute to apply not just to calls, but also texts. Under the TCPA, any texts made using an automatic telephone dialing system (“autodialer”) require prior express consent, with violations of the TCPA allowing for claimed damages on a per-text-message basis

Additionally, the TCPA includes rules relating to the National Do Not Call (“DNC”) Registry, which apply to marketing texts in some cases. These requirements apply when a business does not have consent to send text messages to specific consumers and has not established a business relationship with text recipients. For this reason too, businesses who text their customers may choose to send texts only with consent.

Some of the DNC and TCPA compliance requirements are that a business must:

• Ensure they have valid consent to send text messages (including prior express WRITTEN consent for any advertising/telemarketing messages)
• Not send any marketing texts earlier than 8 a.m. or later than 9 p.m., local time
• Not contact someone on the Do Not Call list if you don’t have valid consent from that person
• Always honor opt outs
• Keep records of opt ins and opt outs

Controlling the Assault of Non-solicited Pornography and Marketing (CAN-SPAM)

The CAN-SPAM Act is a US federal law that governs the use of certain commercial messages (primarily email, but may also apply to text messages in certain situations). It sets out rules for commercial messages, gives recipients the right to stop receiving them, and outlines penalties for violations. If you’re sending marketing email or text messages, you should be aware of and comply with the requirements of CAN-SPAM that apply to your, which may include:

• Providing accurate sender information 
• Providing a clear opt-out mechanism 
• Avoiding misleading content
• Obtaining prior express written consent from recipients before sending marketing text messages to their mobile phone numbers

CTIA Messaging Principles & Best Practices

The CTIA (Cellular Telecommunications and Internet Association) is a trade association that represents the wireless communications industry in the United States. The CTIA has established guidelines for text message marketing (Messaging Principles and Best Practices) that are designed to protect consumers and promote responsible marketing practices. Some of the guidelines includes:

• Obtaining consent before sending text messages
• Providing clear disclosure of the terms of your text message program
• Offering an opt-out method and honoring it
• Honoring consumer preferences
• Protecting consumer data

State & Local Laws 

In the United States, legal requirements often vary significantly from state to state, or even from locality to locality. For example, certain states (like Florida) have passed their own versions of laws similar to the TCPA, which impose specific obligations on anyone using text messages in their state or to their residents. 

Additionally several states have already passed privacy laws that have implications for text marketing and how businesses utilize customer data. California, for example, has implemented the CPRA and other states have already passed or will soon pass their own privacy legislation. You should be aware of where you’re operating and which laws apply to you. 

Canada

The Canadian Anti-Spam Legislation (CASL)

CASL went into effect in 2014 and governs business (and other organizations) that send commercial electronic messages (including text messages, emails, and instant messages)  (CEMs) within, from, or to Canada. 

Under CASL, you must obtain consent from the recipient before sending any CEMs. There are two types of consent: express consent and implied consent. Express consent means that the recipient has explicitly given you permission to send them messages. Implied consent means that there is a pre-existing relationship between you and the recipient that would reasonably indicate their consent to receive messages.

CASL also requires businesses to provide certain information in their messages, including their contact information and an unsubscribe mechanism. 

Failure to comply with CASL can lead to heavy penalties, as well as potential reputational harm.  

Other Canadian Privacy Laws

In addition to CASL, Canada has several other privacy laws that you should be aware of if you’re doing any SMS or text marketing. The Personal Information Protection and Electronic Documents Act (PIPEDA), for example, sets out rules for the collection, use, and disclosure of personal information in the course of commercial activities. 

If your small business collects personal information from customers for text marketing purposes, you must comply with PIPEDA. Several provinces (such as British Columbia, Alberta, and Quebec) also have their own privacy laws that apply to private-sector organizations. These laws may differ from PIPEDA, so it’s important to be aware of them if you operate in those provinces.

Australia

Australia: Spam Act

The AU Spam Act was enacted in 2003 to protect consumers from unwanted commercial messages via email, SMS, multimedia message service or instant messaging. The Spam Act does not flatly prohibit all unsolicited electronic commercial messaging. Instead, it sets out specific requirements for the content of these messages and to ensure that consumers can opt out of receiving them. The Australian Communications and Media Authority (ACMA) is responsible for regulating the Spam Act. The Spam Act requires that commercial electronic messages must generally include:

• Information which identifies and provides contact details for the person or organization that authorized the message to be sent
• A functional unsubscribe facility (that is, an electronic address the recipient can use to tell the sender that they do not wish to receive future messages)
• The recipient has consented (either express or inferred)  

Other Countries or Locations:

There are, of course, many other laws that may apply to your text marketing efforts, depending on your location and where you are sending messages. For example, the European Union’s General Data Protection Regulation (GDPR) applies to all nations in the EU and governs how a company may use their customers’ data, if they are EU citizens. You should always ensure that you’re aware of and following all laws applicable to your business     

3 General Principles to Keep in Mind When Texting

As noted above, while laws vary by country, state, and other locales, there are a number of common principles in most text messaging laws that you should keep in mind whenever you’re using SMS marketing. Here are a few: 

1. Always Ensure You Have Consent Before Sending

No matter where you are, you should always get consent before sending a marketing text message. Often called an “opt in,” prior consent helps to ensure that your message is reaching the correct audience of people who want to receive your texts. You should not think of this need for opt-ins as a roadblock because there are several great ways to get SMS opt-ins. Some methods you might consider include: 

• Getting consent as part of your initial customer intake or sign up process;
• Use a widget on your website that helps collect opt-ins
• Use clear signage, that explains how customers can text a keyword to your number to opt in. For example, you might consider displaying or communicating your opt-in method via:

• Signs in your store
• Signs at events
• Mentions on your website
• Emails
• Social media pages 
• Billboards
• Radio and TV

Of course, there may be other methods you’ll want to use, depending on your circumstances, and ideally you’ll want to employ a combination of methods to increase your opt-ins.    i

2. Honor Opt Outs and Other Consumer Preferences.

Always ensure that you have a clear process for consumers to opt out of your text marketing campaigns and that you’re honoring and recording opt outs as they happen. You should also consider other consumer preferences (and requirements), such as frequency of messages or time of sends, and ensure that you’re respecting and incorporating those preferences into your process. 

3. Provide Clear and Accurate Information About You as the Sender and About Your SMS Campaign 

You should always be clear and accurate about who you are as the sender, as well as what consumers are opting into and how your text messaging program works. Make sure they know details like how to opt out, how to contact you, and how many messages (and how often) they’ll receive. This leads to a better overall consumer experience and helps your business stay in line with texting messaging laws and requirements.  

Grow Your Business via Text Marketing

No marketing campaign is complete without incorporating SMS messages. But you need to make sure that you are aware of and follow all laws that apply to your text messaging campaigns. The laws you have to follow depend not only on where your company is based but also where your customers live, so make sure you consider that before beginning your SMS marketing efforts.. 

In general, though, a few key principles are common for most of these SMS text marketing laws, so make sure you’re always getting appropriate permission to text  customers BEFORE sending, that you’re supporting and honoring opt outs and other customer preferences, and that you’re providing clear disclosures on who you are and the terms of your text marketing program. By staying aware of and following the laws that apply to your situation, you can help your business grow and improve through the benefits of SMS marketing. 

IMPORTANT DISCLAIMER: This article is for informational purposes only. It is not intended as legal advice or a comprehensive summary of the law. You are encouraged to retain your own legal counsel to review this article and assess your unique business scenario. In addition, a business can do many things, including use of the Podium system outside its intended use, which can give rise to liabilities beyond those addressed in this article.