On 19 November the Spanish Data Protection Agency (SDPA) released the results of its “ex officio Sector Plan on telephone advertising”, in which it analyses the practices of major mobile and fixed telephone operators and other entities providing SMS Premium messages or subscriber services in Spain. It provides some practical recommendations and guidelines for users and companies operating in this industry.
The SDPA has highlighted the deficiencies of the existing mechanisms which allow users to prevent the receipt of commercial communications via text messages and calls to fixed and mobile telephones. It also warned of the risks associated with additional rate or premium services.
53% of the companies analysed use telephone directories to select the recipients of their campaigns to fixed telephone numbers. Only around 1% of the subscribers in telephone directories had specifically requested not to receive commercial telephone calls.
In relation to commercial calls to mobile phones, the SDPA found that it is common practice for operators to select recipients who currently use another operator, and then attempt to offer a service which improves on the terms offered by that operator. The SDPA stressed that from a data protection standpoint there is currently no regulation preventing such practices. The Spanish National Audience stated on 17 September 2008 that mobile telephone numbers are personal data only when the numbers can be associated with a specific individual.
Another finding refers to the practice of using the personal data of individuals who have been recommended by existing customers of the company (“tell a friend” schemes). The SDPA has stressed that the use of such data requires the consent of the “recommended individuals”, and has reminded companies that a company specialising in tell a friend viral marketing activities was recently punished for this.
The review found that the main operators advertising via SMS comply with the Spanish e-commerce Act. However, the SDPA has requested that operators provide (i) greater clarity of the right to object to receiving commercial communications from the company and (ii) simpler methods for doing so, as currently not all contracts include a specific provision covering this right.
The majority of the complaints filed with the SDPA relate to unsolicited advertising messages from companies with which there is no contractual relationship. The SDPA noted that most of the large campaigns sending commercial messages from third-party companies are likely to be unlawful because they do not have the subscriber’s consent. However, many of these messages come from outside Spain and the European Union, therefore making it difficult for the SDPA to investigate and punish the companies responsible.
SMS premium messages
A number of the complaints received against SMS Premium operators relate to subscription services, where users were not informed that they were subscribing to an additional rate service. The SDPA issued a warning on offering these services to minors because they are more susceptible to being deceived than adults. The recently approved Spanish SMS Regulations (Order 308/2008, which came into force on 14 November, by the Ministry of Industry, Transport and Communication), makes it compulsory to identify Additional Rate Services by using specific telephone numbers for the provision of the SMS/MMS Premium Services.
The SDPA issued recommendations for consumers to enforce their rights, and for service providers to enhance their best practices. These are set out below.
Main recommendations and guidelines
- If the calls are made by a company with which the user has a contractual relationship, they can state their request to opt out of receiving calls for commercial purposes.
- In order not to receive commercial calls via a fixed telephone line, users can request that the operator does not publish their data in public telephone directories or to have their data marked in such a way that it is not used for commercial purposes (this is done using the symbol “U”).
- It is advisable to store evidence of unsolicited messages received in the mobile phone, in order to be able to file any possible complaints.
- Users should take into account the possibility that when they subscribe to or start using an SMS subscription service or any other SMS Premium service, they may pay for receiving messages as well as for sending them, and this can occur until the user asks to unsubscribe or stop the service.
- With regards to minors, limiting their phone expenditure is not enough. It is necessary to control their access to inappropriate content and contacts. They must be warned that they should take care when using their mobile phone.
- In advertising messages sent by SMS, a simple and free medium should be available to enable users to exercise their right to object to such contact. This could be by means of short SMS messages or other free alternatives, such as the telephone assistance centre or via the website.
- It is recommended that the content provider should be informed when a subscriber stops subscribing to Premium services so that the content provider does not send commercial information in the future to other holders of the same number.
- Although it is not required by the regulations, it is considered good practice to include in each subscriber service message the procedure for opting out of the service.
Finally, the SDPA advises that the regulations be amended in order to make it an offence under the General Telecommunications Act (LGT) to make random calls for commercial purposes without first identifying the holder of the number.