UK: SMS Legal Issues

Last Updated: 29 October 2001
Article by Jonathan P. Armstrong

SMS is for many the surprise success story of m-commerce. But like many surprises there are issues that need to be reviewed after the initial euphoria is over. The legal issues surrounding SMS come into this category.

In the 5 years since e-commerce has really taken off in the UK many of us have become used to the same legal issues arising with e-commerce over and over again. The same concerns find themselves replicated in m-commerce and even the limited 160 characters of SMS messaging can cause problems.


One of the great myths of business, probably coming just after 'the cheque is in the post' is the theory that the internet is copyright free. Similarly if you take text, sound or images and send them over SMS you're likely to be infringing someone else's intellectual property rights. SMS is used as the tool for abuse throughout the UK with dodgy looking logos and ring tones available from most of the tabloid newspapers - and some less reputable sources. Brand owners are putting resource in to police this and certainly if the owners of the rights behind ringtones like Mission Impossible start and take enforcement action their royalties could stretch into the tens of thousands for replays on the Circle Line alone.

Location based services

One of the main areas of SMS regulatory activity concerns geographical location. For many SMS operations it is this ability to accurately pinpoint a handset around the world that makes the technology so attractive. The most-used examples of possible success for pure SMS operations such as incentivising people to enter the restaurant they are just about to walk past, to work out their location and find them a nearby hotel for the night, or even to tell them that the attractive blonde standing at the other side of the bar is looking for a date, are likely to meet with regulatory disapproval.

Already in the US the picture seems confused. Whilst the Federal Communications Commission (FCC) insists on the ability to pinpoint a caller's location as part of their regulatory regime, the Federal Trade Commission (FTC) seemed initially to seek to ban it. The FTC called a meeting in Washington in December with the aim, according to some, of outlawing positioning altogether on privacy grounds. The FTC said that it was concerned because as well as the technology allowing targeted, direct advertising, it could also encroach on privacy rights if people are not given the option of deciding whether they want to be targeted in that way. An outcry in the US forced the FTC to back down at the meeting and adopt a softer line saying that it had no immediate plans for regulation but had called the meeting only 'to educate the commission about what's happening in this space'.

The FTC says in its paper published in January that their aim is to look at m-commerce 'through the lens of consumer protection'. The FTC still says that it is looking to educate itself and that it will not look at enforcement and regulation 'in the short term'. But the spectre of action against geographical positioning remains. The spectre has taken more real form since January with the Acme case in the US. Whilst not strictly using SMS applications the case shows us how geographical location excites the regulators.

The Connecticut department of consumer protection are bringing a prosecution against ACME alleging that they used global positioning to track its cars and that they fined customers $150 every time they exceeded the speed limit for more than 2 minutes. In their defence, ACME say that its contract allows them to fine customers who exceed speed limits and that they use global positioning to ensure its safety rules are enforced rather than to make money. The authorities in Connecticut argue however, that even if such a contractual term is incorporated into the contract with ACME's users it violates the Connecticut Fair Trade Practices Act as it imposes an unfair contractual term. Similar legislation exists in the UK and will be particularly worrying for those offering SMS services to consumers, where the legislation requires a more balanced approach than in B2B agreements. The Connecticut action started after one of ACME's customers brought small claims court proceedings after being charged $450 for 3 incidents of speeding detected by global positioning in the van he rented.

Closer to home The Regulation of Investigatory Powers Act 2000 ("the RIP Act") makes provisions for and about the interception of communications and the acquisition and disclosure of data relating to communications amongst other things. Part 1 of Chapter II of this Act is likely to be implemented in October of this year. This Chapter enables bodies like the police to obtain communications data in circumstances such as prevention or detection of the crime or assessment or collection of tax or duty.

The information can be requested from any telecommunications operator and the data they can request includes personal details of identification, location, times and dates. There is discretion in the Act to pay the operator's costs but this may not necessarily cover all of their costs. In combination with the Act the National Criminal Intelligence Services has recommended that network operators keep all details of phone calls and text messages for seven years. As more of RIP is enforced businesses, particularly those involved in mobile messaging, need to take another look at the implications for their operations.

The Data Protection Act 1998 also has a role to play in SMS. It deals amongst other things with the handling of personal data and as a result SMS operators need to make sure that they have proper consent to hold details and that they keep personal details secure at all times.

Even if geographical location is not involved the sending of SMS messages is a regulated activity and, at the very least, a campaign will require careful planning to stay on the right side of the law. The relevant law is found within The Telecommunications (Data Protection and Privacy) Regulations 1999. Debate exists as to the interpretation of the Regulations and whether they encompass unsolicited marketing by SMS. However, the present Government's stance is that they do and the best practical commercial advice would be that it is sensible to follow this interpretation. At the very least it is important to take specific advice before using SMS for direct marketing purposes, and before obtaining mobile numbers to store for a future campaign.

Hate Mail

Even more worrying that junk texts are the problems posed by hate mail over SMS. Newspapers seem to cover a story a week at the moment and the Government wishes to make it an imprisonable offence to send hate mail by SMS. The Home Office wishes to deter protestors, especially animal rights extremists, who use hate mail to intimidate employees and directors of research companies. On the face of it, this should be good news but there could be a sting in the tail for those who provide the means to send SMS messages. A non SMS case in the UK, Takenaka (UK) Limited and Brian Corfe -v- David Frankl, highlighted the potential costs to employers of identifying who actually sent an e-mail from a particular laptop. We are already seeing cases of disaffected employees coming to Court. Another text related example is the case of R. v. Scott Reid where Reid was sentenced to three months imprisonment by Nottingham Crown Court in August 1999. Reid sent 32,000 text messages to subscribers on the Vodafone network telling them that they had won a Peugeot 106 car and that they had to ring a specific number to claim it. The number he gave was his employer's switchboard. The Court heard that they were brought to a standstill and that BT had to filter its calls for three days. The company estimated that it lost Ł10,000 worth of business as a result. In Court Reid admitted two charges of unlawful modification of computer material and two of unauthorised access to a computer. He also admitted creating a persistent message causing annoyance and asked for other offences to be considered.

The Government's new proposals may result in providers (whether that be network owners or simply employers) investigating, or co-operating with investigations into, this type of allegation. This will inevitably mean that some bear some of the cost of identifying who sent the message.

Messages that aren't hate mail but are defamatory will also be actionable. More worryingly following a line of cases on internet and newsgroup defamation in the UK it's likely to be service providers who are the first target for litigation. When running an SMS service it s important to try and deal with this risk. How you do that will depend on what you plan but detailed access agreements and the possibility of moderation need to be thought through.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

In association with
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.