SMS marketing is a powerful tool, but it's crucial to comply with various legal requirements to avoid significant fines, lawsuits, and reputational damage. These regulations differ by region, but generally focus on consent, transparency, and the ability to opt-out.
Here's a breakdown of key legal requirements for SMS marketing, including TCPA, GDPR, and other relevant laws:
I. United States (U.S.)
The primary law governing SMS marketing in the U.S. is the Telephone Consumer Protection Act (TCPA), enforced by the Federal Communications Commission (FCC).
Express Written Consent: This is the cornerstone of TCPA compliance. Before sending any marketing text messages, you must obtain "prior express written consent" from the recipient. This means:
Explicit Opt-in: Consent must be freely given, specific, and informed. Pre-checked boxes or implied consent are generally not sufficient.
Clear Disclosure: You must clearly inform consumers about what they are opting into, including:
The name of your business.
The nature of the messages they will receive (e.g., promotional, transactional).
The expected message frequency (e.g., "Msg frequency varies" or "2 messages/month").
That message and data rates may apply.
How to opt out (e.g., "Reply STOP to unsubscribe").
Links to your Terms & Conditions and Privacy Policy.
Documentation: You must maintain clear and robust records of consent, including the date, time, method of opt-in, and the exact language of the consent agreement.
Easy Opt-Out Mechanism: Every marketing message must include a clear and conspicuous way for recipients to opt out.
Common keywords like "STOP," "END," "CANCEL," "UNSUBSCRIBE," or "QUIT" should trigger an immediate opt-out.
Businesses must honor opt-out requests within 10 business days (though immediate processing is best practice).
A single confirmation message acknowledging the opt-out is permissible, but it must not contain any promotional content.
The recent TCPA rules (effective January 26, 2026) emphasize that opt-out requests made through "any reasonable means" (e.g., email, voicemail, or informal messages like "Leave me alone") must be honored.
Quiet Hours: The TCPA prohibits sending marketing messages before 8 AM and after 9 PM in the recipient's local time zone.
National Do Not Call Registry: While primarily for telemarketing recent mobile phone number data calls, adhering to this registry is a good practice for SMS marketing as well.
Business Name: Your business name should be included in all outgoing text messages.
One-to-One Consent Rule (Effective January 26, 2026): For lead generators, "one-to-one" consent will be required. This means consent given by a consumer for one company cannot be automatically extended to multiple other businesses or partners. Consumers must provide clear and conspicuous written consent for calls/texts from each individual marketer or seller.
Other U.S. Considerations:
CAN-SPAM Act: While primarily for email, the Federal Trade Commission (FTC) states that the CAN-SPAM Act can apply to some types of text messages, particularly automated promotional texts. Key requirements include:
Not using false or misleading header information or deceptive subject lines.
Identifying the message as an advertisement.
Including a valid physical postal address.
Providing a clear opt-out mechanism that is honored promptly.
CTIA Guidelines: The Cellular Telecommunications Industry Association (CTIA) provides "Messaging Principles and Best Practices." While not legally enforceable, these guidelines are widely respected by mobile carriers and industry players. Adhering to them is crucial to avoid messages being blocked or campaigns denied. Key CTIA recommendations align with TCPA requirements and include:
Double Opt-in: Often recommended as a best practice, where consumers confirm their consent via a second message or action.
SHAFT Regulations: Prohibits content promoting sex, hate, alcohol, firearms, or tobacco.
Clear calls to action, privacy policies, and responsible content.
II. Europe (EU/EEA)
The General Data Protection Regulation (GDPR) is the core data privacy law in Europe and significantly impacts SMS marketing.
Explicit Consent: GDPR requires explicit consent for sending marketing messages. This means consent must be:
Freely Given: No coercion or pre-checked boxes.
Specific: Consent must be for a clear and defined purpose (e.g., to receive marketing SMS). You cannot use a phone number collected for one purpose (e.g., an order confirmation) for marketing without separate consent.
Informed: Individuals must be clearly informed about:
Your identity.
The purpose of processing their data (i.e., SMS marketing).
The types of messages they will receive.
Their right to withdraw consent.
Unambiguous: A clear affirmative action is required.
Right to Withdraw Consent (Opt-Out): Consumers must have an easy and clear way to withdraw their consent at any time. This should be as easy as providing consent (e.g., replying "STOP").
Right to Be Forgotten (Erasure): Consumers have the right to request the complete deletion of their personal data.
Purpose Limitation: Personal data (like phone numbers) can only be used for the purposes specified when it was collected.
Data Minimization: Only collect data that is necessary for the specific purpose of SMS marketing.
Data Security: Implement robust security measures (encryption, access controls) to protect consumer data and be able to demonstrate them.
Transparency and Privacy Policy: Maintain a clear, accessible, and regularly updated privacy policy that explains:
What data you are collecting (phone numbers, etc.).
Why you are collecting it and how it will be used.
How long the data will be stored.
How customers can withdraw their consent or request data deletion.
Record Keeping: You must document and store proof of consent, including the timestamp of consent and the method of opt-in.
III. Canada
Canada's Anti-Spam Legislation (CASL) governs commercial electronic messages, including SMS.
Express Consent: CASL generally requires express consent before sending commercial electronic messages. This means:
Opt-in: Users must actively opt-in (e.g., by checking a box, filling out a form, or texting a keyword).
Clear Purpose: The opt-in must clearly state what permission is being sought (e.g., to send promotional offers).
Identification: Commercial messages must include:
The sender's identification.
Contact details that remain valid for at least 60 days.
Easy Opt-Out: Every commercial message must include an easy-to-use unsubscribe mechanism (e.g., "STOP" or an unsubscribe link). Opt-out requests must be processed promptly.
Personal Information Protection and Electronic Documents Act (PIPEDA): This law governs the collection, use, and disclosure of personal information in commercial activities across Canada. When using phone numbers for SMS marketing, you must:
Inform individuals about the specific purposes for which their personal data is used.
Generally rely on consent as the lawful basis for using data for marketing.
Allow individuals to withdraw consent easily.
Have a privacy policy that explains data handling practices.
IV. Australia
Spam Act: Prohibits sending unsolicited commercial electronic messages without explicit permission. Similar to other regulations, it emphasizes consent and easy opt-out options.
V. United Kingdom (UK)
Privacy and Electronic Communications Regulations (PECR): These regulations cover SMS marketing in the UK and work alongside GDPR. They generally require explicit consent for unsolicited marketing messages, similar to GDPR principles.
General Best Practices for Global SMS Marketing Compliance:
Always obtain explicit consent: This is the most critical rule, regardless of location.
Provide clear opt-out options: Make it easy for people to stop receiving messages.
Be transparent: Clearly state who you are, what messages you'll send, and how often.
Maintain robust records: Document all consent and opt-out requests.
Respect quiet hours: Avoid sending messages at inconvenient times in the recipient's local time zone.
Keep privacy policies updated: Ensure your privacy policy accurately reflects your data handling practices and is easily accessible.
Regularly review compliance requirements: Laws and guidelines can change, so stay informed about updates in all relevant regions.
Use compliant SMS platforms: Many SMS marketing platforms offer built-in features to help with consent management, opt-out processing, and quiet hours enforcement.
Train your team: Ensure all staff involved in SMS marketing understand and adhere to compliance rules.