A complete guide to the ‘opt out’ for SMS messaging
Do you have to include an opt out on SMS marketing texts?
Rules and regulations on whether you need to add an opt opt to your texts are confusing and complicated.
It’s crucial to get it right as the stakes are sky high. Under GDPR the information Commissioner’s Office (ICO) has the power to fine companies eye-wateringly huge sums of money for those who break the rules.
The maximum fine for the worst offences is 20 million Euros or 4% of global turnover.
Have the rules for SMS opt in changed since the UK left the EU?
No. The rules and regulations for sending marketing text messages have not changes since the UK left the EU. All the same regulation apply.
A guide to SMS opt in
The purpose of this guide is to simplify the whole process and provide easy and actionable advice along with clear examples.
Although it’s comprehensive and really well laid out The ICO guide on electronic marketing runs to some 56 pages.
Let’s see if we can make that easier to consume.
Before we dive in we need to understand a few key definitions or we’ll be confused before we even start.
Key definitions
Marketing text
An SMS message sent to a consumer that aims to generate or contribute to a sale of a product or service.
The ICO definition is as follows.
“The communication (by whatever means) of advertising or marketing material which is directed to particular individuals”.
Example
2 for 1 pizza tonight at pizza club. Call us on 01234 567890 or order online at pizzaclub.com
Transactional text
A transactional text sent to a customer that informs them about something but isn’t intended to directly sell to them.
Example
Don’t forget your dentist appointment tomorrow at 1420 at Green Lane Dental. Any problems, please contact us 012345 67890
The Privacy and Electronic Communications Regulations (PECR)
The PECR sets out the specific rules for communicating and marketing to people using email, SMS and phone.
They give people specific privacy rights in relation to electronic communications and that includes SMS.
The rules for sending text are laid out in PECR regs not GDPR.
PECT regulations sit alongside the Data Protection Act and the UK GDPR.
General Data Protection Regulation (GDPR)
GDPR is the set of regulations relating to the processing of personal data. PECR relates specifically to marketing using electronic means. (email, SMS, marketing calls)
Am I allowed to send marketing texts to my customers?
You are permitted to send SMS texts to your customers as long as you have their permission and you can demonstrate this if you are asked.
If you don’t have customers’ specific permission, you can still send customers and prospects marketing texts by relying on something called the ‘soft opt in’.
What is the ‘soft opt in’, in SMS?
The soft opt in is where you already have the contact details of a customer but they haven’t expressly given permission to receive marketing texts.
In this case, you are permitted to send marketing texts as long as you give them a chance to easily opt out. The opt out needs to be included in every texts or communication that they receive.
The soft opt in assumes that customers might reasonably expect to receive marketing texts from a company that they’ve recently bought from or made an enquiry to.
If you rely on the soft opt in, then you need to have given customers the opportunity to opt out of receiving texts when they purchased from you or made an inquiry.
For more detail see The ICO website for the complete definition of the soft opt in.
Papa John’s Pizza found themselves in hot water and facing a fine of £10,000 for misuse of the soft opt in
Over an extended period they were sending customers promotional texts who had ordered pizza over the phone.
These customers had not been given a chance to opt out at the point at which their data was captured. So unlike people who had ordered online or via the app the soft opt in for sending messages did not apply.
Papa John’s soft in. Customers have to tick a box if they do not want to receive SMS or email marketing
If I send a marketing text to an existing customer, do I need to include an opt out?
Yes, if you send marketing texts to your customers or prospects, you need to include an easy way for them to opt out or unsubscribe from receiving further marketing texts from your organisation.
How often do I need to include the opt out on a marketing text?
The opt out needs to be included in every text that you send your customers.
How should the customer be able unsubscribe?
In the ICO’s comprehensive but dry Direct Marketing Guidance PDF, they state:
‘It is good practice to allow individuals to reply directly to the message and opt out that
way’.
So the ideal opt out asks the customers to reply to the text to opt out.
Example reply opt out text.
Order any large pizza and get a second absolutely free. Order online at pizzapad.co.uk or call 0123456789 now. To opt out, reply STOP to this text.
Equally acceptable though is to include a link in the text that customer can click to unsubscribe.
Example opt out using a link.
Order any large pizza and get a second absolutely free. Order online now at pizzapad.co.uk or call 0123456789 now. To opt out, click link bit;ly/example
To seek clarification on which opt out method is preferred by The ICO, we made contact with them to ask that specifically.
We were also interested in finding out if you could ask customers to call a number to unsubscribe.
Flynn Howl, one of the ICO officers, responded.
So there’s no specific preferred method for the text opt out as long a it is as easy as possible for the customer.
Helpful Flynn also suggests that asking customers to call a number to opt out would not be acceptable.
Do I need to include an opt out on a transactional or service text?
You do not need to include an opt out on a transactional or service text. Be aware that if your message contains a marketing element, an opt out is required. Here’s another example of a service text.
“Your order has been placed and has been dispatched for delivery. Click the link to track your package. Tracking web address.”
Do I need to include the opt out on a combined marketing and service text?
Yes, The PECR is very clear that if your message includes a marketing element, then an opt out is required.
“If the message includes any significant promotional material aimed at getting customers to buy extra products or services or to renew contracts that are coming to an end, that message includes marketing material and the rules apply.”
Thinly disguised marketing won’t cut it! EE found themselves on the wrong side of the rules when they tried to disguise some marketing texts as an SMS account alert.
They were dealt with very harshly by the ICO who handed out a fine of £100,000 despite their text receiving no complaints whatsoever.
If I do include an opt out on a mixed text, am I allowed to continue to send transactional texts?
Yes. If a customer or prospect opts out from receiving marketing texts, you can still continue to send them service or account alert type texts.
Flynn Howl, ICO
E.g. You now have 15 club points available for use, click on the website for the latest club point offers. Clubpoints.co.uk Reply STOP to optout.
If the customer opts out from the text above, you can still continue to send the customer the following account-based texts, like the following example
You’ve redeemed all your club points. Your points will refresh next Thursday.
How quickly does the SMS opt out need to be implemented?
You are required to implement the opt out immediately. You are not allowed to take as long as 30 days to process the request.
When we asked the ICO specifically on this, they didn’t provide a maximum time lag that would be acceptable.
Again, Flynn Howl from The ICO.
Do you need to confirm to the customer that they have been unsubscribed by text?
Sending an unsubscribe confirmation text is not required although you may wish to do so.
A customer has chosen to unsubscribe, can I send them another text at a later date, asking if they’d like to opt in again?
No. If you send any further marketing texts after a customer has opted out, you will be in breach of the rules.
Once someone has unsubscribed they should receive no further marketing texts.
“You must not contact them at a later date even if this is just to ask if they want to opt back in.”
If a customer unsubscribes to a marketing text, does that also exclude them from receiving email?
No, When a customer unsubscribes from receiving marketing texts you are still allowed to send them marketing emails.
You do of course have to give the customer the opportunity to unsubscribe in every email that you sent them.
Are you required to state the costs of opting out by text?
If you are using a 5 digit short code for people to text an unsubscribe keyword to, then there is an actual cost to the customers. Texting a short code will always cost one text at the person’s standard rate.
Normally this is 8 – 12 pence, depending on the network. Texting short codes is never included in monthly free text bundles, so there is always a cost.
The ICO suggested that you should be informing customers about the potential costs but hinted that it may not be actually required.
The key point that Flynn makes is that…
“You want to remove as many obstructions to them withdrawing consent as possible.”
As we come across more questions about unsubscribing to SMS, we’ll add them to this post.
Just a quick disclaimer
The SMS Works Ltd is unable to give legal advice on any matter relating to SMS, electronic mail or any other subject.
It is your responsibility to make sure that your SMS marketing campaigns follow the rules as set on on the ICO website.
The text examples are used for guidance and we can’t be held responsible if their use results in any type of legal action or fine.
