Copyright 2002

[ January 25th 2002 ]

The Advertising Standards Authority recently came down heavily on a mobile phone message advertisement sent out by leading computer games company Eidos Interactive. The publishers of the Lara Croft series had employed a rather inventive way of marketing and promoting its Commandos 2 product.

Eidos had sent out text messages to customers in the form of a conscription notice. Perhaps less catchy than "Your Country Needs You!", the text said: "Please report to your local army recruitment centre immediately for your second tour of duty. Commandos 2 on PC, It's More Real Life Than Real Life out today from Eidos." The mobile phone identified the sender as "SNBS."

One former member of the British Army was not amused and complained to the ASA. As a result, the advertisement was banned. The ASA was concerned that it might distress recipients. The text fell foul of two elements of the advertising code. First, advertisements should not cause fear or distress unless there is a good reason. Second, advertisers, publishers and owners of other media must make sure that it is clear that advertisements are exactly that: advertisements. The ASA concluded that the text Eidos sent did not make it clear enough.

This issue could arise again, as the use of both text messaging and e-mail to promote products becomes increasingly prevalent. Manufacturers are looking for ever-more-inventive ways to sell their products and, while it is easy for consumers to identify a poster campaign or TV ad as an advertisement, it could be much harder for them to recognise that a text or e-mail is an advert.

This is particularly the case in the text scenario, as the Eidos/ASA adjudication showed. Advertisers are trying to get their message across with limited space and they don't want to use up that space underlining: "This is an advertisement." No doubt with this in mind, the Wireless Marketing Association has recently released a Code of Conduct to govern advertising via mobile phones.

The code makes it obligatory for advertisers to include their contact details in every text sent. This may well dissuade companies altogether, since contact details could take up most of the text message space. The limit at present is 160 characters. The Code also requires recipients of unwanted texts to be given the opportunity to register their unwillingness to receive such unsolicited texts. Eurocrats have also been looking at the issue of unsolicited e-mails in both the snappily titled Directive on the Processing of Personal Data and the Protection of Privacy in the Electronic Communications Sector (the Communications Directive) and the E-Commerce Directive.

There have been lengthy discussions as to whether unsolicited commercial e-mails should be subject to opt-out provisions, where recipients are required to flag up their wish not to receive mail, or opt-in provisions, where mail is only sent to those expressly wishing to receive it.

In the Communications Directive, which will apply to e-mails and SMS, the European Parliament had recommended that the choice should be left to individual member states. However, the Telecom Council of Ministers decided at their meeting in December that, since the majority of member states prefer an opt-in policy, the single market principal should prevail. This would mean that spam electronic mail would only be allowed where there is prior consent from the individual, subject to an exception for existing customers. Needless to say, there has since been intense lobbying to persuade the European Parliament to reinstate its original wording.

If the Telecom Council gets its way, the scope for spam advertisements will be much reduced. But for a company inclined to the same approach as Eidos, the pitfall is still there. It is just that the pool of people whom you can address is smaller.

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