Dechert - Bluespam - Is It Legal?
"Bluespam: Is it legal?" examines whether so called bluespam falls within the restrictions imposed by the Privacy and Electronic Communications Directive and whether organisations can therefore be prevented from marketing via bluetooth without first obtaining consent. It also considers the practicality of obtaining consent from bluetooth users and discusses the options for Bluetooth users who do not wish to receive bluespam.
Increasingly, we are seeing Bluetooth technology being used for the purposes of direct marketing to mobile phones.
There are options for those that do not wish to receive direct marketing via Bluetooth – you can turn the Bluetooth on your mobile phone or other device off or “hide” your phone. However, many will take the view that they should not have to take such steps to avoid receiving what is termed as “Bluespam”.
Whilst at first glance Bluespam appears to fall into the same category as unsolicited direct marketing via email, telephone and SMS spam (all of which are caught by the terms of the Privacy and Electronic Communications Directive (Directive 2002/58/EC), there is legal uncertainty as to whether the Directive does catch it. In short, the Directive captures communications over “public” networks, but at least arguably, the only network used in Bluespam is that created on an ad hoc basis between the transmitting device and the handset in the hands of the recipient. Hardly, public. Renzo Marchini and Kate Tebbutt of Dechert LLP have explored this line of thinking in a recent article:
Read the Dechert paper to find out the full picture