Telecom txt spam – RTFC

Stuff reports that Telecom has been accused of “probably” breaching the anti-spam law:

Internal Affairs is looking into whether Telecom may have breached spam laws by sending text messages to customers that did not include instructions on how customers could unsubscribe from receiving such messages… Victoria University law student Hamish McConnochie drew attention to the texts, promoting Telecom’s pre-pay top-ups and roaming services …

Here’s a quick tip: look at Telecom’s Term’s & Conditions (see below).

The anti-spam law (the Unsolicited Electronic Messages Act 2007) requires certain types of commercial electronic messages to offer an unsubscribe facility. This law is “technology neutral” – it applies to all types of electronic messages, including emails, text messages, instant messages, etc. However, the unsubscribe facility is not needed where there is a “contract, arrangement or understanding” between the sender and receiver not to include an unsubscribe. Telcos are well aware of this law and usually take necessary steps to comply. Telecom argues it has such an arrangement as follows:

Telecom sent customers text messages in November telling recipients that unless they objected then, Telecom would deem they had agreed future text messages from the company need no longer include an opt-out message. Spokeswoman Anna Skerten said those messages created such an arrangement.

A “no response means you accept” text cannot create a contract. However, it is arguable that it could create an “arrangement or understanding” – which are clearly intended to mean something less than a contract or other form of express consent.

But what is unusual is that Telecom’s spokeswoman did not simply refer to Telecom’s mobile service terms and conditions (link is for the prepaid version – others exist). Clause 13(3) states:

From time to time we may send you sales and marketing information about Telecom products and services. You can let us know at any time if you do not want to receive sales and marketing information by contacting Telecom Customer Services

There is no need for messy arguments over whether some text sent last year created an “arrangement”, when there is a contract which clearly applies. Together with Telecom’s “opt-out” text, that would probably suffice (there may be a more specific opt-out in some of the other T&C’s but I’m not going to read them all…) Importantly, Telecom’s T&C’s, like most others, also include a “changes” provision allowing Telecom to modify its terms. So if Telecom decides it needs to change or clarify its T&C’s in response to this reportage, it can do so. It should. Vodafone’s T&C’s are much better, as they clearly state:

You agree that we and our Agents may send you marketing messages, electronic or otherwise, about our special offers, products and Services, and those of our selected Agents and third parties which may be of interest to you. You agree too that the electronic marketing message we, our Agents and third parties send need not include an unsubscribe facility.

Internal Affairs could allege that Telecom’s terms (together with the opt-out text) were insufficient and launch a prosecution. I don’t think it would succeed, and it would probably be a waste of taxpayer money:  the worst outcome for Telecom would be a relatively minor fine that would most likely not cover the costs of a defended prosecution. Also it is highly unlikely that any customer will be able to claim compensation (which requires loss to have occurred).

Finally there is room for argument that under clause 11(2)(a), third-party texts would still not be covered by the telco’s terms & conditions, but that is a separate question.

5 thoughts on “Telecom txt spam – RTFC

  1. I thought that regarding Telecom’s T’s and C’s.

    I didn’t quite understand why Parliament wasted it’s time with the anti-spam legislation – there’ve been how many prosecutions?

    There are ant-spam apps in the Android market (maybe on iPhone as well). If those catch on then it will be increasingly worthless for operators to spam people as the customers will just block all their messages.

  2. Good points. I get those txts from Telecom sometimes. Not a big deal. There isnt room for unsubscribe anyway is there? They would need to send a 2nds text?

  3. Hi Guy,

    Must say, and this will come as no surprise, I disagree with your interpretation here.

    In regards to clause 13, I believe that telcos should have to provide express words to create an arrangement or understanding in order to ‘contract’ out of the legislation. This should be done by negating s 11, as Vodafone has done. Telecom’s agreement doesn’t do this, however. To create an arrangement, according to the dictionary, you have to agree to that arrangement. Is agreeing to Telecom’s T&C’s agreeing to an arrangement where s 11 doesn’t apply? I don’t think so. But I do think Vodafone’s does.

    In terms of the text message creating an arrangement or understanding, I disagree, for several reasons. The first is as per above, you need to agree to an arrangement. I believe the same standard for acceptance should apply to agreeing; no response does not equate to acceptance nor agreement. Feel free to disagree on that. My other major point for disagreeing with you is that one of the purposes of the Act is to “require commercial electronic messages to include accurate information about the person who authorised the sending of the message and a functional unsubscribe facility in order to enable the recipient to instruct the sender that no further messages are to be sent to the recipient”. As such, I think there should be a high threshold for what constitutes an agreement into an arrangement and/or understanding. When you combine this with the idea that no response does not equate to no agreement, then I think that Telecom has failed to provide sufficient evidence of customers consenting to no opt-out requirement being necessary.

    Another point to note is that when I went to the Telecom store last year with a problem relating to my cell phone, I asked the sales assistant what would happen to my text messages, as I hadn’t turned my phone on for a week. He said they only stay on the server for a few days before they’re deleted. As such, customers who were overseas or left their phone off for a couple of days may not have even had the chance to receive the “text STOP now otherwise you agree no opt-out info required” text.

    Cheers, Hamish

  4. Hi Hamish, thanks for your comment. You are quite right that Telecom should have used express words like Vodafone’s. It’s a bit strange they have been so “loose” on this, given that (according to some wags) Telecom is actually a law firm with a phone company attached 🙂

    I wouldn’t say that you must have an “agreement” before you trigger section 11(2). That section refers to “a contract, arrangement, or understanding” which clearly contemplates something other than an agreement alone, and less that an agreement in the formal sense. But the situation is not clear – it’s definitely possible that a Court could find a breach has occurred. Things like your example of the phone being off would certainly count against the “arrangement” defence.

    Cheers
    Guy

  5. Hi Guy,

    Thanks for the response. The reason I use “agreement” is that the Collins dictionary (we don’t have OED at work) defines “arrangement” as, under definition 5, “an agreement or settlement; understanding”. As such, I take the view an arrangement can only be by agreement. I’m also taking ejusdem generis into account when I state this, as contract precedes arrangement in the legislation.

    Regardless of the law, I think it’s just poor business practice and the reason I contacted the media was to try and alert people about Telecom’s poor attempts to get around the legislation. I’m not really too concerned if the DIA takes action or not, I just hope that this can create awareness about the law and also create pressure on Telecom and telcos in general to not to try and be so “shifty”.

    I’m doing the soap box on tomorrow night’s “Back Benches”, talking on the subject. Only got 60 seconds so it’s not going to be any more informative than what we’ve discussed here but I’d be interested to hear the comments from some of the MPs, if they have any.

    Cheers,
    Hamish

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