Since the launch of the mobile communication technology, we have seen the rapid rise in the number of people using mobile phones to send short message services (SMS) and share information with their friends and relatives. Many people think that sending short text messages is illegal. The truth is that SMS marketing has been around for years, and it has even reached the arena of the global media through the popularity of SMS software like SMS Gateways and text message platforms such as i messaging and QQi messaging software. SMS marketing is certainly legal as long as the messages are sent by permission of the user. In other words, a user can send unsolicited SMS, just like any other electronic mail that the user might register.
The open rate and the click-through rate are the two important metrics that most marketers use in order to determine if their marketing strategies are working or not. Generally, there are two types of SMS marketing strategies – the free SMS and the paid SMS. The difference between these two strategies lies on the amount of data that will be exchanged. In the case of free SMS, the open rate is the measurement of how many times the message was opened; while in the case of the paid SMS, it is the measurement of the number of times the message was clicked on.
Users can easily define the parameters of their consent when they sign up for a particular SMS service. This means that there is no need for the user’s written consent because the SMS service will only send unsolicited SMS if the user has opted to receive them. However, the SMS marketing strategies can still be in violation of the CAN SPAM Act if they are sending bulk SMS to non-subscribers or bulk SMS that are sent using automatic transmitting systems such as i messages and QQi messages. The first two strategies are considered as spamming, since they send unsolicited messages to people who did not sign up for text message services.
There are various definitions on whether or not SMS marketing is legal. Generally, most of the courts have ruled in favor of the marketers. This is because bulk SMS do not break the consumer’s right to privacy. As long as the messages do not include personal or sensitive information such as an opt-in number, the personal privacy is protected. However, this ruling may still be subject to changes according to the ever-changing social and technological trends. For instance, if mobile devices will become a standard way of communication, the rule regarding spamming might be expanded.
Not all marketers break the law by sending bulk SMS messages to their subscribers. There are mobile marketers who use third party applications to enable their subscribers to sign up for its services, but the subscribers do not give the permission for marketing to their cell phone numbers. However, this is legal according to the Fair Accurate Transaction Act of 2021. It says that marketers can only reach their target audience through legitimate means and that it should be done in the least expensive, least intrusive way possible.
Some marketers would argue that they are using the services of sms marketing software to send bulk text messages to their customers. And since its software is not capable of making direct contact with their clients, the law does not allow them to do so. However, this argument is quite flawed. Since these marketers already had an existing relationship with their subscribers, this means that these marketers already have legal rights to market to their subscribers.
The main reason why his marketing is legal is because the mails that are sent to a subscriber are considered as “solicitation” under the law. A couple of years ago, the House of Representatives passed the CAN SPAM Act which prohibits bulk or unsolicited commercial email. Bulk and unsolicited email are prohibited because it makes it possible for spammers to harass their subscribers and send unwanted business e-mails. However, text messages are not considered as spam because they are not from a commercial entity but from a consumer or a friend. The sender is legally allowed to use a service like MMS or SMS to market to a subscriber of his choosing.
Although there are many experts who believe that marketers should adopt a different approach to marketing, they should not let fear of being branded as a spammer prevent them from using this modern way of marketing. There are three basic keys requirements needed to be fulfilled in order to use this method legally. These are that marketers inform their customers about the value of their product before sending them any unsolicited text messages; they inform their consumers that they are not sending any unsolicited messages and that the content of the message is subject to their discretion; and that they inform their customers that they are not sending any bulk or unsolicited text messages. If a marketer fulfills these three requirements, then it is considered legitimate.