There is little doubt that mobile marketing, in particular SMS marketing, is one of the most efficient and effective ways for businesses to engage with and reach their customers. Admittedly, we’re a little biased when it comes to SMS; however, with open rates significantly higher than email and stronger engagement than advertising, it’s easy to see why more brands are adding mobile to their marketing mix.
Brands are excited to start using SMS marketing, but some CMOs raise concerns around the TCPA rules and the potential threat of legal action. Some have heard stories of lawsuits, harassment, and difficulty managing opt-outs. For a better understanding, let’s look at what used to happen.
Law firms would seek out companies using SMS marketing. These trolls (sorry, lawyers) would threaten a class-action lawsuit and send aggressive letters stating the SMS campaign was in violation of the TCPA. These letters would suggest the brand could be fined up to $1,000 in damages for each message sent – citing issues of harassment, user permissions or the opt-out challenges. The letters would go on to assert that the company was responsible to prove they did not violate the TCPA or cause injury to the plaintiff. In the face of potential legal costs and a negative brand impression, some companies settled out of court. Trolls win!
Here’s why the recent decision in Spokeo, Inc. v. Robins is so important for marketers. Although the case was related to the Fair Credit Reporting Act (FCRA), the U.S. Supreme Court set aside a previous ruling by a lower court allowing Robins to sue in federal court as a plaintiff in a class action lawsuit. Here is the important part – the Supreme Court also instructed judges determine if plaintiffs could show actual injury due to a violation of a federal law before allowing them to sue in federal court. Since both the FCRA and TCPA are federal laws, it’s believed this ruling will require plaintiffs to prove injury before being able file a lawsuit. And, with mobile phones and text messaging becoming ubiquitous, it seems unlikely a text messaging campaign would cause injury worthy of legal action. Marketers win! (Note: Marketer – this does not give you permission to be annoying. Continue to follow good SMS marketing etiquette.)
Now, I’m not a lawyer (and I don’t play one on the Internet), but this is an important ruling and great news for mobile marketing. If you are being threatened with a lawsuit, please talk to an attorney – preferably, one with TCPA experience. They should be well aware of the recent ruling and of the laws are in place to make sure everyone wins.