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Marketing SMS (short message service) refers to sending marketing messages to your customers through text messaging. Marketing SMS can directly get product and sales information to your customers and draw them back for repeat purchases. However, you have to be careful that your marketing texts do not become spam and breach any of your legal obligations. Otherwise, for each individual text message you send that qualifies as spam, you could face heavy legal fines and alienate your customers. This article will go through what laws apply to marketing SMS and what you can do to ensure your marketing SMS does not become spam.

What Qualifies as Marketing SMS?

Marketing SMS is text messaging of a commercial nature that you send to your customers. You may send these kinds of text messages to notify customers of a sale starting at your business or provide your repeat customers with exclusive discount codes and coupons.

For example, you may have a loyalty program where your customers sign up to receive exclusive limited-time offers at your business via SMS marketing. 

In legal terms, any SMS of a commercial nature are called “commercial electronic messages”. These are electronic messages sent through a telecommunications service that either:

  • promote or market goods or services;
  • encourage or enable a dishonest financial advantage; or
  • contain a link to a page or message detailing the previous two points.

A dishonest financial advantage may refer to dishonestly profiting to the detriment of someone else, such as through fraud or a scam.

What Is Not Marketing SMS?

Electronic messages of a transactional or administrative nature will not qualify as commercial electronic messages for legal purposes. These can include:

  • shipping/delivery updates;
  • receipts;
  • responses to a request for a quote or estimate;
  • confirmation messages of a previous transaction;
  • warranty or security information about previously purchased goods;
  • appointment reminders; or
  • notification of a completed delivery.

For example, say you run a beauty salon. You may send your customers SMS messages of an upcoming appointment on the day you expect to see them. These texts would not qualify as an unsolicited commercial electronic message.

When Can I Send Marketing SMS?

You can only legally engage in SMS marketing when it does not qualify as spam, such as unsolicited commercial electronic messages. If you do, you can face hefty legal consequences. For each unsolicited marketing text, you could be fined $200, up to a maximum of $500,000.

Your marketing texts are unsolicited when you do not:

  • have the customer’s consent to send them that message;
  • clearly identify who you are and include your contact details; and
  • include a way for your customers to unsubscribe from future texts.

Each customer that you send your marketing SMS to must consent to you sending these texts. Customer consent can be express, inferred or deemed. However, it is best practice to get your customers’ express consent to send them marketing texts. This means you have a record of their express agreement, which they gave in the course of your business relationship. If you use any location-based information in your texting service, you need your customers’ consent to collect and use that private information. You should also take steps to protect the phone numbers you store.

For example, you could gain a customer’s express consent through a tick box indicating they wish to receive text message marketing from your business. Verbal consent may also be acceptable, but you should aim to keep a record of it.

Avoid sending your customers marketing SMS outside of business hours. Otherwise, you run the risk of being intrusive and only discouraging them from engaging with your business.

Meeting Your Legal Requirements When Text Marketing

In each marketing text message you send to your customers, you need to identify your business as the sender and include your contact details. You also need to include an easy way for them to unsubscribe from future text marketing, using the same communication method. You cannot direct your customers to an email address or landline to unsubscribe. Some automated text services require a fee for replies, so you need to make sure your business pays this fee and not your customer if they want to unsubscribe.

For example, you may include at the end of each marketing SMS something along the lines of “Reply STOP to stop receiving these texts”. The unsubscribe function needs to be operational for 30 days after you send the text.

This is a lot of information to include on top of your marketing content, and text messages often provide a limited number of characters for communication. You can abbreviate your business name and other words as long as you are still clearly identifiable. You can also include the option to unsubscribe in a second message that you send soon after your initial marketing SMS. Test your unsubscribe option to ensure that it works.

Tip: If you use an automated texting service, your phone provider may also have a code of conduct that you are contractually obliged to follow. Ensure that you comply with any of their regulations as well.

Key Takeaways

If you want a direct line to your customers, SMS marketing can be an excellent way to notify them of business deals and services. However, you need to make sure you have their consent to send them these texts and include the necessary qualifications to avoid these messages becoming spam. If you would like more information or help with your marketing SMS, contact LegalVision’s regulatory and compliance lawyers on 0800 005 570 or fill out the form on this page.

Frequently Asked Questions

What does SMS stand for?

SMS stands for “short message service”. These are short text messages you send via your cellphone.

What is SMS marketing?

SMS marketing refers to sending your customers marketing messages through texting. This could include new product reminders or sales notifications.

Do shipping updates qualify as SMS marketing?

If you send your customers shipping updates through text messages, these do not qualify as SMS marketing. This is because they are related to the completion of a specific transaction.

Is sending unsolicited texts illegal?

Sending unsolicited commercial texts to your customers is illegal. These are texts you send without consent that market or promote your goods or services.

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