Can you opt out of having an opt out message?

February 14th, 2011 at 10:00 am by David Farrar

Stuff reports:

Internal Affairs is looking into whether may have breached laws by sending text messages to customers that did not include instructions on how customers could unsubscribe from receiving such messages.

Telecom said its approach was “common practice”, meaning Internal Affairs’ ruling could have an impact on text and email marketing promotions run by other firms.

Victoria University law student Hamish McConnochie drew attention to the texts, promoting Telecom’s pre-pay top-ups and roaming services, claiming they probably fell foul of the Unsolicited Electronic Messaging Act, passed by the last Labour government in 2007. The act states that all commercial electronic messages must include instructions on how recipients can unsubscribe, unless they have reached an “arrangement or understanding” with recipients that these need not be included.

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. But Mr McConnochie said simply not responding to that text did not meet the threshold for an agreement under the act.

It’s arguable either way, but for my 2c I think an “arrangement” not to receive opt out instructions must in itself be something you opt into, not just decline to opt out of.

It will be interesting to see what DIA decides.

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13 Responses to “Can you opt out of having an opt out message?”

  1. hamishm (6 comments) says:

    Hi David,

    Thanks for linking this. Under contract law, silence is not acceptence.

    Further, I found out from Telecom back in August last year when I had a problem with my phone, the message only bounce around for a couple of days before they’re deleted (that is if you haven’t turned your phone on to receive them). As such, if you’re out of the country for a week, you might not have received that “agreement text” (as per Telecom’s argument) in the first place, due to their system.

    Cheers,
    Hamish

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  2. Pete George (23,345 comments) says:

    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.

    They are trying to say that if you ignore their spam they’ll keep sending it. Not good enough.

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  3. V (694 comments) says:

    Once again government bureaus tackling the important issues.

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  4. GTP (42 comments) says:

    What did the texts say ? Isn’t there a distinction between “operational” messages and marketing/promotional material.

    They may argue they are “operational”

    When the Act came in most large orgs sent out the standard “Opt Out now or we’ll assume you’ve Opted In” type message

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  5. anonymouse (708 comments) says:

    The Unsolicited Electronic Messaging Act, passed by the last Labour government in 2007.

    Talk about dredgy media comment.

    Yes the bill was a government bill, but in the end it was voted through by a 118-2 majority, hardly what I would call a partisan piece of legislation.

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  6. RRM (9,667 comments) says:

    This leftie can see your dilemma DPF!
    You think there should be a law against it, don’t you? Eh? EH??

    Shift + Delete.
    No more problem. :-D

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  7. hamishm (6 comments) says:

    @GTP

    An example I saved to my phone;
    “Frm Telecom: Going abroad this Xmas? Stay in touch with 10 FREE roaming mins/mnth on calls from overseas to NZ til 31.1.11. No set up reqd. telecomroaming.co.nz”

    That is far more propmotional than operational, IMO.

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  8. GTP (42 comments) says:

    @Hamishm Some of the marketing folk I deal with would have interpreted that (loosely IMO) as operational as it relates to an existing service you have with Telecom. It’s not actually urging you to buy anything is it ?

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  9. Graeme Edgeler (3,277 comments) says:

    When the Act came in most large orgs sent out the standard “Opt Out now or we’ll assume you’ve Opted In” type message

    Which was sensible. It doesn’t mean they don’t include opt-out information each time they send a message though.

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  10. GTP (42 comments) says:

    “Which was sensible. It doesn’t mean they don’t include opt-out information each time they send a message though.”

    Yep, but it was mainly because most of them had been collecting email addresses for years using various means with no terms and conditions under which the addresses would be used at the time.

    FWIW, I think the option to opt out should be on every communication regardless of whether it’s “operational” or “marketing/promotional”.

    The other problem is the categorisation of exactly what am I opting out of ? I might want to opt out of hearing about some crap from you but other stuff I’m interested in. If you make the categorisation at too low level it’s worthless for opting out of, if you make it too high level you risk opting out of things you want want to hear about.

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  11. smttc (711 comments) says:

    Felthouse v Bindley (old English contract case). You cannot foist a contract on another by proclaiming that their mere silence will be deemed acceptance.

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  12. Hagues (711 comments) says:

    And what if you thought you didn’t mind the odd text from your telco back in November, but then months later they suddenly ramp up the number of text you get. You should be allowed to change your mind at anytime, and it should be easy to do so, therefore instructions to stop should be on every text.

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  13. hamishm (6 comments) says:

    @smttc
    they may argue the Act uses ‘arrangement’ instead of ‘agreement/acceptance’ but a quick internet search of arrangement’s definition states;

    agreement: the thing arranged or agreed to; “they made arrangements to meet in Chicago”

    and to agree, I believe you need to accept.

    Hopefully DIA takes action!

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