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By Kerry Gorgone, {grow} Contributing Columnist
Few channels offer better access to your audience than mobile: 75% of Americans admit to bringing their mobile device with them to the bathroom! Talk about a captive audience. In their eagerness to take advantage of mobile, however, some marketers have gone a bit too far, disregarding certain best practices and legal requirements.

Here are some ways to invite a lawsuit if you’re engaging in mobile marketing.

Text your entire customer database, whether or not they’ve agreed to receive mobile messages from you.

All mobile marketing communication must be opt-in. For instance, if you plan to use geo-targeting, mobile messaging, or push notifications, you need to get the recipient’s express WRITTEN permission beforehand (an opt-in).

Provide people with the information to opt in when you send emails, when you advertise in traditional channels like print, radio and television, and also when you post to your company’s social networks or website. You might also consider targeted banner ads. However you do it, get people to opt-in.

Jiffy Lube was fined $47 million because they had not obtained prior consent before texting 2.3 million customers. They’d pulled cell phone numbers from their invoices, then texted customers who hadn’t opted in. If you want to hemorrhage money, try this approach. $47 million is a lot of oil changes.

Text people to ask if they want to start receiving your text messages.

Sending people a text message to ask if they want to receive text messages is like saying “Can I ask you a question?” Didn’t really give them a chance, did you? They need to opt in before ever receiving a single mobile message from you.

Don’t include a way to opt out. Your messages are so awesome, why would they want to?

Burying the opt out information is a surefire way to get into legal trouble. Marketers should carefully manage the subscriptions of people who’ve opted into your mobile messages. If they unsubscribe, you immediately remove them from your mobile notifications.

Buy lists of phone numbers for mobile marketing.

This comes back to the requirement that people opt in. “Opt in” means the recipient has agreed in writing to receive mobile messages specifically from you, not a third party. If you want to stay on the right side of the law, make sure that you’ve created your own list of people who’ve opted in to receiving mobile messages from you.

Post advertising claims without disclosing important things about them. Like that they’re advertising.

The FTC is super serious about this one.  Disclosures must be included, even on small screens.  Moreover, they need to be placed so that people cannot spend any money or take any other important action without seeing them. If you wrote a glowing review of a resort, and fail to mention that your trip was sponsored by the resort owners, a an upset reader (or a competing blogger) might just report you to the FTC!

The 4 P’s of FTC Disclosure:

  • Placement (Place disclosures near the claim they’re qualifying.)
  • Proximity (Users shouldn’t have to scroll or zoom to see disclosure)
  • Prominence (Make it pop.)
  • Presentation Order (Make it “unavoidable” that consumers see disclosure before they can “Add to Shopping Cart”)

Account for different settings, as well as responsive web design, and if you’re not looking for trouble, remember that space-constrained ads must still be in compliance. If you can’t fit disclosure on the platform, don’t use it.

BONUS POINTS:  Don’t check your analytics to see if anyone reads the disclosures you did post.

Beyond having to make disclosures, the FTC requires that you monitor analytics to make sure people are reading them. If they’re not, you need to figure out why and fix the issue, unless you want legal headaches, in which case, don’t worry about it.

Every brand loves pouring their hard earned revenue into a legal defense fund, but why get into trouble when it’s so easy to avoid it? The Mobile Marketing Association has rich resources available on best practices for marketers:

Study up before blasting your list with text messages. Or don’t: that will give me something to write about next time!

Kerry O’Shea Gorgone is a writer, lawyer, speaker and educator. She’s also Instructional Design Manager, Enterprise Training, at MarketingProfs. Kerry hosts the weekly Marketing Smarts podcast. Find Kerry on Google+ and Twitter.

Original illustration copyright www.businessesGROW.com

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