JUL 2009 - Bluetooth Marketing/Proximity Marketing
The Department of Internal Affairs’ Anti-Spam Compliance Unit has been asked whether Bluetooth Marketing contravenes the Unsolicited Electronic Messages Act. The following is the Department’s current position on Bluetooth Marketing and is offered as a guide only. It is not a legal opinion and independent legal advice should always be sought.
Bluetooth is a protocol that connects devices wirelessly over short distances through ad hoc networks. Each device can simultaneously communicate with a number of other devices within a single network and can also belong to several networks at the same time. Bluetooth can be used on phones to send and receive text and pictures to handsets within range, but is also used on devices, such as wireless headsets and games controllers, to transmit data.
The way someone might advertise using Bluetooth could be via a transmitter in a shop, billboard or product display to "broadcast" to people passing by with Bluetooth-enabled devices (eg. phones, Blackberries, PDAs). These people might receive a message inviting them to download to their phone content which alerts them to special offers or sale items.
Bluetooth marketing is said to have a number of advantages. As it is free to send or receive content via Bluetooth, there are no unexpected charges, unlike many other premium mobile services. It is also near point-of-sale.
But is it spamming?
Opponents of this form of marketing have called it "Bluetooth spamming", and on first look it does appear to be contrary to the Unsolicited Electronic Messages Act. Such messages would be both "unsolicited" (ie. without the consent of the recipient) and "commercial". However, it is not so clear that Bluetooth Marketing would fall within the Act’s definition of an "electronic message". Section 5 of the Act defines an electronic message as a message sent using a telecommunications service; and to an electronic address.
Taking the first part of the definition, does Bluetooth marketing use a telecommunications service? To answer this it is necessary to work through the definitions in a number of Acts:
- telecommunications from the Telecommunications Act 2001
- broadcasting from the Broadcasting Act 1989
- telecommunications service from the Unsolicited Electronic Messages Act 2007.
When that's done, the conclusion is that Bluetooth marketing does use a telecommunications service.
Turning to the second part of the definition, is a Bluetooth message sent to an electronic address? The Act provides that an electronic address means an address used in connection with (a) an email account, or (b) an instant messaging account, or (c) a telephone account, or (d) a similar account.
While a Bluetooth device has an electronic address of sorts (devices can recognise each other), it may not have an "account" as contemplated by the Act. While a Bluetooth-capable phone may have a telephone account, the Bluetooth functionality is not a feature that a user pays for as part of an account with a telecommunications provider. It is a feature of the device.
The Department has concluded that Bluetooth marketing is not sent to an electronic address and therefore is not an electronic message. It would therefore appear not to be contrary to the Unsolicited Electronic Messages Act 2007.
This explanation is not an endorsement. If the practice of Bluetooth marketing becomes widespread, it has the potential to generate considerable public annoyance.
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