Two men recently filed a class action lawsuit against Twitter, alleging that Twitter engaged in unlawful conduct by sending messages to their mobile phones without consent, in violation of the Telephone Consumer Protection Act.
In the past few years, there have been a number of cases in which companies sent unsolicited text messages to consumers, and courts have ruled that those messages violated the TCPA. The twist in this case is that the plaintiffs actually opted-in to receive messages from Twitter. Later, the plaintiffs opted-out of receiving messages, and Twitter sent them one final message to confirm the opt-out request had been processed. According to the plaintiffs, this confirmation message violates the TCPA.
This lawsuit impacts virtually all SMS campaigns. Most agreements in the mobile space require companies to comply with the Mobile Marketing Association’s Consumer Best Practices Guidelines. Those Guidelines state, in part: “When STOP, or any of the opt-out keywords above, is sent to a program, the program must respond with a [mobile terminated] message, whether or not the subscriber is subscribed to the program.” In other words, the Guidelines require companies to send a confirmation message.
Although companies can usually assume that complying with industry standard guidelines, such as the MMA Guidelines, means they will also be in compliance with the law, this lawsuit demonstrates that doing things right isn’t always a guarantee that plaintiffs’ attorneys won’t file a lawsuit in an attempt to force a settlement and payments. Companies should check with their counsel to determine whether they need to modify their practices in response to this lawsuit.