What is the TPS?
The TPS is the UK’s official ‘do not call’ register. It serves as a mechanism individuals can use to opt-out of receiving unsolicited phone calls and messages, promoting privacy and reducing nuisance. It is a critical aspect of how unsolicited marketing communications are regulated in the UK.
The TPS allows individuals to register their phone numbers to indicate their preference not to receive unsolicited marketing calls and messages. Businesses must respect these preferences and must refrain from contacting registered numbers.
Additionally, the TPS establishes a framework that businesses must follow to ensure compliance with individuals' wishes. It sets legal boundaries on marketing activities to protect consumers from unwanted communications.
The TPS operates under The Privacy and Electronic Communications (EC Directive) Regulations 2003 (PECR), which stipulate rules for electronic marketing, including marketing via phone calls and text messages. Violations of TPS regulations can result in significant penalties.
Which communications does the TPS apply to?
The TPS primarily applies to voice calls, but it also applies to SMS marketing. Both voice and text communications fall under the broader category of electronic marketing and are subject to similar regulatory oversight.
By understanding the PECR and the TPS rules and differentiating the rules for voice calls and text message marketing, businesses can navigate the legal landscape and ensure compliance with the PECR.
10 best practice tips for PECR and TPS compliance when text message marketing
The TPS covers text message marketing. Businesses are required to check their marketing lists against the TPS database and must refrain from sending texts to registered numbers.
By incorporating the following best practices, businesses can navigate the complexities of the PECR and the TPS rules with confidence, maintain a positive reputation, and build lasting trust with their audiences through responsible SMS marketing.
10 actions that can help your business carry out text message marketing with best practice:
1. Checking the TPS database
Before conducting any text message marketing campaigns and sending any marketing messages, businesses must regularly check their marketing lists against the TPS register. This ensures that they do not send marketing messages to phone numbers registered with the TPS (ie to individuals who have registered their preference not to receive such communications). Automated processes or third-party services can be utilised to efficiently cross-reference numbers against the TPS database.
2. Requiring consent and opting-in
Businesses must obtain explicit consent from individuals before sending them marketing messages via text. Consent should be freely given, informed, and specific to text message marketing. This means that individuals must explicitly opt-in to receive marketing messages on their mobile devices.
3. Separating consent for text messages
Consent for text message marketing must be separate from consent for other forms of communication. Individuals should have the option to specifically opt-in to receiving marketing messages via SMS and this choice should not be combined with other communication preferences (eg with consent for email marketing).
4. Providing clear identification
Text messages sent for marketing purposes must clearly identify the sender. Recipients should be able to easily recognise the source of the message and the business behind it.
5. Providing opt-out mechanisms
Businesses must provide a clear and easy-to-use opt-out mechanism in every marketing message. Recipients should have the option to stop receiving text messages at any time by simply replying or by following other provided instructions.
6. Honouring opt-out requests
Once a recipient opts-out, a business must promptly honour their request and ensure that no further marketing messages are sent to that number.
7. Keeping records
Businesses should maintain accurate records of consent for text message marketing. These records can serve as evidence of compliance in case of inquiries or audits.
8. Ensuring third-party compliance
If a business is using a third-party provider for text message marketing (eg a specific text message marketing agency or software), the business remains responsible for ensuring that this provider adheres to TPS regulations and obtains proper consent.
9. Maintaining an internal 'Do Not Contact' list
This list should include individuals who have previously expressed their desire not to receive marketing messages or who have opted out. Integrating this list into marketing processes helps prevent unintentional outreach to restricted and uninterested recipients.
10. Ensuring timely update of TPS data
TPS data is periodically updated to reflect new registrations and changes in individuals' preferences. Businesses must ensure that their marketing lists are up-to-date with the latest TPS information in order to minimise the risk of inadvertently contacting TPS-registered numbers and to help avoid violations.
What happens if I don’t comply with the PECR and the TPS rules?
Non-compliance with the PECR and TPS rules can have serious implications for businesses, ranging from legal consequences to damage to the business’ reputation and customer relationships. Here are the key potential implications of failing to adhere:
Penalties and fines
Businesses that violate the PECR and TPS rules may face significant penalties and fines of up to £500,000. Regulatory authorities have the authority to impose financial sanctions based on the severity and frequency of violations. These fines can impose a substantial financial burden on non-compliant businesses.
Reputational risks
Non-compliance with the PECR and TPS rules can lead to reputational risks for businesses. Word spreads quickly, especially in the age of social media, and customers are more likely to share negative experiences than positive ones. A reputation for disregarding consumer privacy preferences can erode trust and tarnish a business’ image.
Customer backlash
Consumers value their privacy and dislike receiving unsolicited communications. Non-compliant businesses risk alienating their customer base and facing backlash from recipients who feel their preferences are not respected. This can lead to increased opt-outs, negative reviews, and a decline in customer loyalty.
Legal action and lawsuits
In serious cases, non-compliance may result in legal action initiated by affected individuals or consumer advocacy groups. Lawsuits can lead to further financial losses (eg from compensation awarded to complainants and from legal expenses).
Operational disruption
Dealing with regulatory investigations, fines, and legal proceedings can disrupt business operations and divert resources away from core activities. The time and effort required to address non-compliance issues can impact productivity and profitability.
Loss of business opportunities
Some partners, clients, and customers may be unwilling to engage with businesses that have a history of non-compliance. This can limit growth opportunities, partnerships, and collaborative ventures.
Long-term brand damage
The negative effects of non-compliance can persist over the long term. Rebuilding a damaged brand reputation and re-establishing trust with consumers can be a challenging and time-consuming process.
The future of the TPS and SMS marketing
As technology and communication habits continue to evolve, the landscape of text message marketing and its intersection with the PECR and TPS rules is poised for transformation. Here's a glimpse into what the future may hold:
Potential changes to the PECR and TPS rules
Regulatory bodies are likely to adapt legislation like the PECR and the TPS rules to align with changing communication channels. Updates may include:
-
enhanced cross-channel coverage - TPS regulations could extend to cover emerging communication platforms beyond voice and text, such as messaging apps and chatbots
-
stricter consent standards - increasingly stringent consent requirements might emerge, necessitating more robust opt-in processes and documentation
-
global consistency - efforts may be made to harmonise TPS-like systems globally, streamlining cross-border marketing compliance
The evolving landscape of compliance
Text message marketing compliance will continue to shape how businesses engage with consumers. For example:
-
artificial intelligence (AI) and automation - AI-driven tools could aid real-time TPS checks and dynamic opt-out management
-
personalisation and consent - compliance practices may shift to balance personalisation with stringent consent protocols
-
consumer empowerment - future regulations may empower consumers with more control over data usage and communication preferences
-
blockchain verification - innovations like blockchain could verify and secure consent records, enhancing transparency
Adapting to these potential developments requires businesses to remain agile, invest in compliance technology, and prioritise ethical communication. Staying ahead of regulatory shifts ensures that text message marketing remains a valuable tool for engagement while respecting individual privacy and preferences.
How should businesses engage with text message marketing?
As businesses chart their courses in the dynamic realm of SMS marketing, embracing TPS compliance becomes imperative. By implementing responsible practices, businesses can foster positive brand perception, cultivate trust, and forge enduring connections with their audiences.
The journey towards impactful SMS marketing rests on a foundation of respect, consent, and unwavering adherence to TPS regulations. Embracing this foundation not only ensures compliance but also elevates the art of communication to new heights, enriching both businesses and their valued recipients.
The future of TPS and SMS marketing is one where responsible practices and innovative technology converge, shaping a landscape that benefits both businesses and consumers alike. By embracing these changes, businesses can build lasting trust, nurture customer relationships, and thrive in the dynamic realm of digital marketing.
For more information on marketing in general, read Marketing and the law. If you have legal questions about your business’ marketing practices, you can Ask a lawyer for assistance.
