“Bluecasting is Legal” (but Still Annoying) Shock

Since the introduction of the Privacy and Electronic Communications Act in 2003, there has been a lot of confusion over the legality, or otherwise, of ‘ambient’ Bluecasting, where a Bluetooth transmitter sends out a message that will arrive on any phone within range with Bluetooth switched on. Some argue that it is against the law, since the initial message is unsolicited, while others argue that if you have Bluetooth switched on, you leave yourself open to this type of message.
But Saul Kato, CEO of mobile content distribution company Qwikker has insisted that the practice is perfectly legal, owing to a crucial difference between the nature of an SMS or email, and a Bluetooth opt-in message, in terms of its storage on the device on which it is received. Speaking exclusively to Mobile Marketing, Kato said:
“Ambient Bluecasting without a visible call to action or context is annoying, but it is not illegal. We have scrutinised it, and we do not believe it violates any aspect of the law. There has been some misunderstanding about the way that a Bluetooth message is delivered. An unsolicited message sent to your phone is not stored on your phone in the way an email is on your PC. The Spam regulations involve data that is stored on the phone, but there is no way to get an unsolicited message, or any other data, stored on your phone, without the user’s permission.
"In fact, you could argue that the initial message is generated by the phone. The transmitter says: ‘I am here’ and  it’s the phone that says: ‘Do you want to accept this?’ But at this point, no data has been stored on the phone. It’s only when you say ‘Yes’ that you get something in your inbox. So the legality is airtight. Is in intrusive or not? That’s a different question, and I think ambient Bluecasting would be intrusive.”
Although Qwikker has run a small number of campaigns in bus shelters in the US, the majority of its work is carried out in environments such as a rock concert, where there is a captive audience, likely to be interested in the branded content it offers on its client’s behalf. 
Kato’s take on the regulations is certainly an interesting one which we have not heard advanced before. We’d love to know what other people make of it. Comments anyone?

Ed’s note: This is a slightly revised version of the original story, after Qwikker contacted us to point out that the crucial difference in terms of storage on the device is not between SMS and email, but between SMS or email, both of which are stored on the device to which they are sent, and a Bluetooth message, which the user has to proactively choose to  store on the device. We are happy to make the clarification.

Bluecasting - The Next Marketing Faux-pas? Read. 

Comments

[Marc Fonteijn]

I don't believe that bluecasting objects to any law. As consumer having bluetooth enabled and setting your device to discoverable means as much as "sure, please communicate with me". Another thing is that when a user isn't aware or interested in a message, he can just ignore the request to accept content and after some time the message will disappear from his phone without leaving any trace and requiring any manual action.

The whole discussion is not about if it's legal by law but on how the users experience the service. Sure you can have a perfectly legal system but if it annoys people what's the value. Bluecasting is not a one-men show. If you start sending messages out of the blue to people nearby than the chances are people will get annoyed. Setting up a "zone" that users visually can identify and are aware of helps a lot. Also letting users know that they are entering a zone in where they might get messages gives them the option to turn of bluetooth before they enter.

It's all about how the people perceive and experience this kind of communication.