Unsolicited marketing text messages sent following harvesting of mobile numbers from a website [08/04/2010]
In January 2009 an individual complained to me regarding his receipt of an unsolicited marketing text message.  The complainant stated that he had placed his number on a website to advertise a property he had available to rent.  He subsequently received a text message from an energy efficiency testing company offering its services to him.  He was concerned not only about the way his number was obtained and processed by the company, but also by the fact that there was no 'opt out' option included in the message he received which would have allowed him to object to receiving any further communications.

In order to legitimately contact an individual mobile phone subscriber by text message for direct marketing, the sender must have obtained prior consent from the individual.  Otherwise the marketer runs the risk of committing a criminal offence under Regulation 13(1)(b) of S.I. 535 of 2003 (as amended), and may be prosecuted.  The failure of a sender to include a cost free opt out in a marketing text message is also an offence liable to prosecution.

My Office commenced an investigation into the matters raised by the complainant.  We contacted the company to seek an explanation and provided it with a copy of our Guidance Note on the use of electronic mail for direct marketing purposes to assist it in responding on the matter.

The company responded by admitting that it did source the complainant's number from a website and that it proceeded to then send him a marketing text message regarding a service it was providing to home owners.  It was extremely apologetic for causing offence to the complainant and for breaking any regulations.  It explained that it had recently commenced offering the service.  It also confirmed that it had abandoned plans to continue with such marketing and it advised that the complainant's personal details were now deleted from its databases.

As an act of good faith and in an effort to amicably resolve the matter to the satisfaction of the complainant, the company donated a sum of €100 to a charity of the complainant's choice. The complainant was satisfied with this outcome.

This case is an example of the disturbing trend of commercial entities sourcing mobile numbers of private individuals from websites or from other published sources for the purpose of using those numbers to market their own products. Any person who advertises their property for sale or rent on a website or elsewhere should not, as a consequence, be exposed to the risk of receiving unsolicited text messages from a company promoting its own products.