Texting: Following the Rules Doesn’t Appear to Help

Twitter recently found itself the target of a class action lawsuit filed against the social network by two men who received text messages from Twitter.  Recent case law interpreting the Telephone Consumer Protection Act (TCPA) makes it unlawful to send messages to consumers without their consent.

Such lawsuits are far from uncommon.  However, the twist in this case is that the message in question was actually sent to confirm the fact that the plaintiffs no longer wanted to receive texts from Twitter that they previously opted in to receive.   The Plaintiffs previously gave their consent to receive messages, and then opted out by following Twitter’s instructions.  Apparently, it is Twitter’s practice to send a final message to those members who elect to opt out that their request has been processed.

Another twist to this case: By sending that final confirmatory message, Twitter was only following the Mobile Marketing Association’s Consumer Best Practices Guidelines, which require companies to send a confirmation message to consumers after their opt-out request is processed.  In other words, poor Twitter was only trying to do the right thing.

Is there any way to win in this world?  The whole purpose of establishing industry standard guidelines such as those followed by Twitter is to ensure compliance with applicable law.  Obviously, doing so does not insulate a company from potential liability from frivolous lawsuits, as demonstrated by the matter at issue.

This case will hinge around the purpose of that final message.  If the court finds that the sole purpose of the message was purely informative and non-commercial in nature, it should fall under one of the exemptions set forth in the TCPA and the rules promulgated by the FTC to enforce it.

The fact of the matter is that this lawsuit would never have been filed if the sender was a small business without the deep pockets of a mighty online social network.   Money itself is a source of potential liability.  If there’s any justice in this world, this case should be dismissed.


Author: Seth Heyman
Seth D. Heyman is a California attorney with extensive experience in advertising and marketing law, corporate law, contracts, governmental regulations, international business, and Internet law. He has counseled numerous successful companies, both public and private, and was responsible for regulatory compliance, contract management, corporate governance, and HR best practices for multiple organizations in many diverse industries, including marketing, telecommunications, energy, and technology development. He offers insight and guidance on federal and state direct mail, TV, radio, telemarketing, and Internet marketing laws, as well as online promotions, Internet privacy, data protection regulations, and similar matters.

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