Mobile Marketing Matures: Legal Issues Persist

Earlier this week, I was interviewed as a legal expert in the PR News digital article “As Texting Moves from Simple Bottom-Line Actions, R U Ready?” (See January 23, 2012 edition at www.prnewsonline.com.) After exploring some of the innovations in mobile marketing for PR professionals, the article included my comments about the biggest legal risks in mobile marketing. These are 1) creating a proper consumer opt-in; 2) conducting legal prize promotions; and 3) identifying privacy concerns.

Below is a summary of this article:

1. First, technology has progressed so that texts can link directly to the call to action. The texting experience is starting to be an integrated one for consumers, allowing them to transact business easily from their texting platform.
2. Carriers have made texting more available and not just as text only SMS messaging, but also as multimedia MMS messaging.
3. At the same time, the market is saturated with texts, and consumers may not respond to text messaging readily. Enter third party technology developers who are trying to improve audience response rates by pushing consumers’ social media messaging to mobile.
4. Marketers are also becoming more strategic in their use of mobile, texting their customers less frequently but with greater results.
5. I commented on the legal landscape here:

R U FOLLOWING THE LAW?
Then there are legal issues to consider. According to attorney Kyle-Beth Hilfer, whose practice areas include advertising, marketing and promotions, marketers are becoming more daring in trying to communicate with consumers on mobile devices. In so doing, they maybe losing a clear perspective on laws that govern mobile. The opt-in required by the consumer is what separates mobile outreach from other platforms. “The opt-in must be specific in nature and limited in scope to pass legal muster,” says Hilfer, who adds that enforcement of federal statutes in this area, as well as state attorneys general investigations, are on the rise. Legalities of prize promotions and privacy concerns should also be top-of mind when executing mobile campaigns. Relevant laws pertaining to mobile that PR
pros should study include the CAN-SPAM Act, the Telephone Consumer Protection Act and
Telemarketing Sales Rule.

None of the legal obstacles identified in the article are insurmountable. Steps to take:

• Bring legal into the design phase. It is essential to ensure that consumers have opted in and understand to what they have given consent before they complete a call to action or start receiving messaging.
• Strategic use of prize promotions in mobile is smart marketing. Legal counsel can help you structure your promotion to be lawful. Don’t assume that your sweepstakes administrator has vetted the rules it drafts.
• Evaluate the privacy issues of linking social media messaging to mobile. Explore what risks this creates for the brand. Your third party vendor may have great technology, but remember it is your brand that will be on the hook legally and from a public relations perspective if something goes wrong.