TMT focus
Andrew Fawcett Partner, Digital & Data
Ahmed Khairi Paralegal, Digital & Data
Both recipients and senders of promotional or marketing SMS should be aware that the UAE has mandatory processes regarding the sending of bulk SMS. The UAE Telecommunications Digital and Government Regulatory (“TDRA”) Mobile Spam Policy (Version 1.0 dated 29 March 2020 (“Mobile Spam Policy”) was enacted on 29 March 2020 as a more detailed policy related to Mobile Spam in the UAE, supplementing the pre-existing the wider Unsolicited Electronic Communication Regulatory Policy (Version 1.0 dated 30 December 2009) (“Unsolicited Electronic Communications Regulations”). The Mobile Spam Policy offers more information and details on the use of marketing text messages in the UAE and sets out the specific rules that apply to Mobile Spam.
The Mobile Spam Policy specifically governs spam marketing, and text messages via mobile phone. According to the Mobile Spam Policy, “Marketing Text Messages” are defined as a kind of mobile phone text message sent for providing goods, services or trade opportunities; advertising goods services or trade opportunities; or for any other purposes identified by the designated Authority. More specifically, the Resolution defines “Spam Marketing Text Messages” as Marketing Text Messages sent to the recipient without getting his/her approval.
Capitalised terms used in the article are as defined under the Mobile Spam Policy.
The Mobile Spam Policy sets out the terms that Licensees (i.e Etisalat and du) must follow when transmitting Marketing Text Messages to subscribers along with the procedure of receiving consent, opting-in and opting-out and Licensees’ compliance with the provisions of the Spam Policy when transmitting to Mobile Subscribers.
The broader the Unsolicted Electronic Communications Regulations apply to all Electronic Communications with a UAE Link (defined as a message that originates from any individual, recipient, company or device located in the UAE), that are sent to a recipient without obtaining Consent.
The purpose of both the Mobile Spam Policy and the Unsolicited Electronic Communications Regulations is to minimise the transmission of Mobile Spam in order to the following; (a) Promote secure and trusted information; (b) promote effective use of information and communication technologies to stimulate a healthy business environment; and (c) create a safe communication environment.
The Mobile Spam Policy sets out the Consent principles to receive Marketing Text Messages as shown below:
Consent is defined as the approval by a recipient to receive Marketing Text Messages. The process for obtaining consent must be clear and transparent.
All forms of consent are applicable so long as the consent can be stored in a tangible form when required by the TDRA.
The Consent records shall be retained as long as the Mobile Subscriber is receiving Marketing Text Messages.
Methods of Unsubscribing to a service to be provided in all Marketing Text Messages without charge. Text Messages are not to be used for persuading a Subscriber not to use an opt-in or opt-out procedure.
The Licensees are not allowed to withhold and/or refuse to provide a service based on a Subscriber’s failure to provide Consent as required under the Mobile Spam Policy.
The Mobile Spam Policy sets general obligations on Licensees to; (a) minimise the transmission of Mobile Spam that have a UAE Link across their Telecommunications Networks. If the Licensee is aware that a Mobile Spam is being transmitted from a particular Electronic Address (defined as a recipient of an Electronic Communication that can be identified and contacted on a particular type of Telecommunications Network) and does take the proper action required to end the transmission, the Licensee would be failing to comply with the obligations contained with the Mobile Spam Policy, (b) Licensees are required to take appropriate measures to raise awareness to their Subscribers, and (c) Licensees are prohibited from selling, sharing, supplying or use of any information that facilitates Address Harvesting (defined as collecting and capturing of an Electronic Address by means of software, tools, technologies or other methods of generating an Electronic Address) and the generation of Electronic Address.
The TDRA may at its discretion, request additional information from the Licensees in relation to Mobile Spams having a UAE Link.
For Businesses wishing to mobile Marketing Text Messages using the Licensees’ networks the (as a Messaging Service Subscriber) they are subject to the following:
Regarding the Marketing Text Messages of Messaging Service Subscriber, the Licensee shall get the approval of mobile phone subscriber to receive the Marketing Text Messages by the Messaging Service Subscriber.
The Licensee shall check and verify the approval of the mobile phone subscriber and ensure that there is no block request from the mobile phone subscriber before sending any Marketing Text Messages thereto, whether from the Licensee or from the Messaging Service Subscriber.
All evidence (that may be registered and shown concretely) proving that the mobile phone subscriber agrees on receiving the marketing text messages by the Licensee or the Messaging Service Subscriber shall be kept
No Marketing Text Message may be delivered by the Licensee or the Messaging Service Subscriber unless the above three requirements are
Consequently, if business wants to send a marketing text to its customer base but does not have a record of consent of the customer to receive the marketing messages – the relevant Licensee should decline to send the messages.
Marketing Service Subscriber can ask the Licensee to request the consent of the of mobile phone subscriber to receive the Marketing Text Messages from the business. It remains to be seen how this will work in practice – but it may be the only option if business does not have an existing consent that meets the requirements of the Mobile Spam Policy.
The Mobile Spam Policy requires Licensees to manage their networks for signs of Mobile Spam and take immediate action to eliminate the transmission of Mobile Spam and provide proper protection against Mobile Spams to Subscribers.
The Mobile Spam Policy sets out additional obligations as follows:
The Licensees are responsible for Delivery of Marketing Text Messages, whether it is the Licensee’s own Marketing Text Messages or those relating to the Messaging Service Subscriber to the Mobile Subscriber;
The Licensees are prohibited from sending any messages on a certain period through the day;
Licensees cannot use mobile messages to send Marketing Text Messages to Subscribers encouraging them to contact a Premium Rate Number through calling, messaging or any other form of Electronic Communication;
Licensees are obligated to provide the Subscriber with information to help minimise the level of Mobile Spam;
Licensees are required to develop a mechanism for verifying Consent from the Subscriber;
Licensees are to develop a special classification for Marketing Text Messages sent to the Subscriber;
Messages are required to include a block service, according to the type of the advertising material; and
Licensees are required to allow the Subscriber to accept or reject certain types of messages through features that are available on the Subscriber’s mobile;
The Mobile Spam Policy also requires Licensees to keep records for the period of time during which the Licensee’s own messages and those relating to the Messaging Service Subscriber are being sent to the Subscriber, in addition to two years after the last communication, the Licensee is required to keep records of:
Consent received form the Subscriber; and
Subscribe Notification.
The Licensee is required to keep the following the records, for as long as the Subscriber remains subscribed.
Opt-out procedures; and
Unsubscribe Notifications.
The Licensee is required to send evidence within three business days from the date of request, in case TDRA requests evidence from the Licensee concerning consent.
Licensees are responsible for handling cases of non-compliance with requirement for the Managing Service Subscriber to obtain Consent from the Subscriber. In case the Messaging Service Subscriber’s violation of any provision related to the Messaging Service Subscriber’s own obligations, the service will be entirely ceased to the Messaging Service Subscriber in default.
Mobile Spam Policy imposes significant legal rules for parties involved in Marketing Electronic Communications, being primarily the “Licensees” (being the locally licensed telecommunications service providers – Du and Etisalat) and Messaging Service Subscribers (advertisers using the Licensees’ network to send marketing communications).
For further information, please contact Andrew Fawcett and Ahmed Khairi.
Published in June 2022
