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SMS Legal: Compliance Guide in Spain, Europe and Latin America

In the digital era, SMS marketing campaigns remain an effective strategy to reach specific audiences directly. However, it is crucial to conduct these campaigns in compliance with the legislation in force in each region.

Here we provide you with a detailed guide on how to send SMS campaigns in compliance with data protection and consent regulations in Spain, Europe and Latin America.

12 minutes of reading
Publication: 02.14.2024
Última modificación: 07.04.2024
Categories: SMS newsSegurity

General Considerations

Complying with data protection and consent legislation when sending SMS campaigns is essential to build a positive relationship with users and avoid legal sanctions. Staying informed about local regulations and adapting marketing strategies accordingly is key to long-term success.

It is important to consider the following factors:

1. Audience Segmentation: Focus on specific audience segments that have given their consent to receive SMS messages.

2. Periodicity and Frequency: Limit the frequency of messages and respect users' preferences.

3. Data Protection: Ensure security measures to protect stored and transmitted data.

4. Easy Opt-out: Include a simple option for recipients to unsubscribe from future SMS campaigns.

Regarding the Law:

Any SMS communication must adhere to the fundamental principles of legality. It is imperative that SMS campaigns do not pursue goals that violate current legislation or fundamental rights. Practices such as fraud, identity theft, intimidation, harassment, or other illicit actions should be avoided.

Telecommunications Regulations:

Understanding and respecting specific regulations in telecommunications is essential when conducting SMS campaigns. This becomes particularly relevant in sectors or uses subject to regulations or limitations, such as tobacco, politics, drugs, debt recovery, among others. Compliance with these regulations not only ensures the legality of the actions taken but also contributes to maintaining a solid reputation and the trust of recipients.

These additional considerations reinforce the importance of conducting oneself ethically and legally in all SMS interactions. Respecting legislation and specific telecommunications regulations is a fundamental pillar for the integrity and sustainability of any marketing strategy, ensuring a positive relationship with users and avoiding potential legal consequences and damage to the company's reputation.

Consent in SMS Campaigns: Specificity and Context

Consent in the context of SMS campaigns plays a crucial role and must adapt to the specific nature of communication. It is essential to understand that consent is not a generic concept but must be specific in terms of both purpose and content. Here are some key considerations:

1. Commercial or Promotional Campaigns: For campaigns involving commercial content, discounts, or promotional offers, obtaining explicit consent from the recipient via SMS is essential. This consent must be clear, informed, and specific to receiving such messages.

2. Transactional or OTP Messages: In the case of transactional messages or One-Time Passwords (OTP) associated with providing a service or completing a transaction, general consent may be sufficient. For example, a message like: "I consent to receiving SMS communications to securely and reliably complete this order."

3. Service Agreement: In many cases, consent to receive SMS messages is part of the service agreement. This document should clearly detail communication channels and associated purposes. In this context, explicit consent may not be necessary for strictly transactional or OTP messages, as it is implied in the service agreement.

4. General Regulations: Consideration should be given to the specific regulations of the country or region, as consent requirements may vary. Ensuring that consent is obtained ethically and transparently is essential for building trusted relationships with users.

Spain

In Spain, the protection of personal data is mainly governed by the Organic Law on the Protection of Personal Data and guarantee of digital rights (LOPDGDD) and the General Data Protection Regulation (GDPR) of the European Union. To send SMS campaigns legally:

a. Consent Acquisition:

- Explicit consent from the recipient is mandatory.

- It must be informed, free, specific, and unequivocal.

- Users must have the option to withdraw their consent at any time.

b. Transparent Information:

- Provide clear information about the sender's identity and the purpose of the message.

- Include contact information for inquiries and requests.

c. Right to Object:

- Include a clear option for users to object to the processing of their data for direct marketing purposes.

Possible Sanctions for Non-compliance with LOPD Legislation in Spain

Non-compliance with the Organic Law on Data Protection (LOPD) in Spain can have serious consequences for companies. Authorities, in this case, the Spanish Data Protection Agency (AEPD), have the power to impose significant fines for violations of the regulations.

Sanctions can vary depending on the severity of the infringement, ranging from substantial financial penalties to the prohibition of certain data processing practices. It is crucial to emphasize that the company's reputation could also suffer irreparable damage, affecting customer trust and the public's perception.

Therefore, strict compliance with the legislation is not only a legal obligation but also a fundamental preventive measure to preserve the integrity and good name of any entity.

Europe

European Union regulations, especially the GDPR, are applicable to all member states. To comply with legislation in Europe:

a. Consent and Transparency:

- Consent must be obtained before sending messages.

- Users must be informed about the sender's identity and the purpose of the message.

b. User Rights:

- Respect user rights, including the right to access, rectify, and erase their data.

c. Record of Processing Activities:

- Maintain detailed records of data processing activities.

Latin America

Regulations vary in Latin America, but many countries have data protection laws and specific regulations for sending unsolicited messages. Some general principles include:

a. Active Consent:

- Obtain explicit consent from recipients before sending SMS messages.

b. Sender Identification:

- Clearly identify the message source and provide valid contact information.

c. Data Subject Rights:

- Respect the rights of data subjects, such as access and rectification.

In the Latin American context, each country has its own data protection legislation and regulatory authorities. Some examples include:

- Mexico: Federal Law on Protection of Personal Data Held by Private Parties (LFPDPPP)

- Colombia: Statutory Law 1581 of 2012 and Regulatory Decree 1377 of 2013

- Peru: Personal Data Protection Law

- Chile: Law No. 19,628 on the Protection of Private Life

It is essential to consider that when conducting SMS campaigns involving sending messages to different countries, consulting and respecting the specific legislation of each jurisdiction is crucial. Data protection laws and telecommunications regulations can vary considerably, and ignorance of these regulations does not exempt from legal responsibility. Staying updated on local regulations and obtaining specific legal advice for each region is fundamental to avoid sanctions and ensure global regulatory compliance.

In the constant pursuit of complying with data protection and consent regulations when sending SMS campaigns, having a reliable platform is essential.

At LabsMobile, we focus on security and transparency, complying with all regulations in Spain, Europe, and Latin America. We facilitate the management of SMS campaigns, respecting user privacy and ensuring ethical marketing practices.

Contact the support team if you have any questions.

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