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Text Messaging and Privacy Laws: What Business Owners Need to Know

Discover how text messaging can impact your business and why it’s important to adhere to text messaging privacy laws.

In today's connected world, the use of text messages for marketing purposes has grown. Consumers are using their phones for everything, and they have become an integral part of marketing for businesses.

However, for companies to simply send unsolicited text messages to phone numbers is illegal, and understanding the laws surrounding text message marketing is important for many reasons. The fines associated with sending unwanted text messages to consumers can cost a business a lot of money.

But not only the financial aspect of the laws needs to be considered. When communicating with existing or potential customers, ensuring that their privacy and security is maintained is very important.

This article will discuss text messaging laws by state and the consequences of not abiding by them. Understanding text messaging laws will give your business vital information about best practices for complying with the laws and ensuring your customers retain their privacy.

What are text messaging laws?

Text messaging laws specify how and when a business may communicate with individuals via text messages. In a world where most people have a mobile phone with text messaging capability, communicating via these short messages has become normal.

However, there is a big difference between friends and family communicating with each other via text messages and businesses sending information to individuals. Therefore, it is important to know what text message privacy laws are and how to employ text messaging as a communication method without breaking those laws.

Why is it important to have these laws?

The purpose of text message laws is to protect consumers. By following these laws, companies ensure that consumers who do not want to receive information via text messages are not subject to unwanted communication.

The only way a business can legally communicate with a consumer using text messaging is if the consumer has provided consent. That way, the consumer knows that they may be receiving information from the company, and the company is not just sending unsolicited text messages.

These laws help individuals maintain their right not to be bombarded with unsolicited marketing messages from companies, even companies they do business with, without providing some form of consent. Depending on the type of message that is being transmitted, different levels of consent are required.

Types of marketing messages

Any text message sent by a company to an individual is considered a marketing message. However, under this broad umbrella term, there are three types of marketing messages that businesses can send: conversational messages, informational messages, and promotional messages.

Depending on the type of message, different levels of consent are required to ensure that personal text message privacy laws are being adhered to.

The biggest thing to consider with text message marketing is that consumers must always have an explicit option to opt out of future communication. The opt-out option must be clearly stated in your business's privacy policy or somewhere that is easy for consumers to find.

Conversational messages

Conversational messages are just that - a conversation between a consumer and a company. This will generally be a series of back-and-forth messages, most often initiated by the consumer who may be reaching out to a company for something specific.

Because the consumer often reaches out initially to the business, consent is implied. This implied consent makes conversational messaging the simplest method to ensure the appropriate laws are followed.

But still, even with implied consent, an opt-out option must be available that enables the individual to opt out of receiving any more messages.

Informational messages

An informational message is used to convey information to a consumer. These are often used by offices to confirm appointments and do not require any return message from the consumer.

For a company to legally transmit informational messages to a consumer, it is necessary to obtain express consent from the receiving party. This means that the business has asked for and received permission from the consumer to communicate via text messaging.

Promotional messages

Promotional messages are those that are sent to consumers with some sort of offer or call to action. Often, these messages will include a link to the company's website or a promotional code to be used inside a business.

Prior express written consent is required to communicate with consumers via promotional text messages. This is a step beyond the express consent needed for informational messages and involves an actual document that has been presented by the company to the consumer, with the consumer signing the document and returning it.

Text messaging marketing laws

SMS marketing laws fall under two primary federal laws, the Telephone Consumer Protection Act and the CAN-SPAM Act. These laws are applicable to different things, but both cover SMS and MMS messaging.

Telephone Consumer Protection Act

The TCPA was enacted in 1991 and applies to automatic means for communicating via telephone, fax, and text unless express written consent has been granted. This act prohibits businesses from going through a list of numbers and automatically calling or texting them.

However, if an individual has provided consent to be contacted via automatic means, this law allows for that. Again, the appropriate level of consent must be obtained, and the consumer must always have the right to opt out of future communication.


The CAN-SPAM Act regulates commercial email messages, including sending emails to cellular phones. Under the law, these messages must include specific details indicating they are an advertisement, a physical address, and a clear message providing opt-out options.

Cellular Telecommunications Industry Association Guidelines

The cellular industry also has data protection regulations in place to protect consumers. These laws exist to help protect cellular users from several things, including unsolicited text message marketing from businesses.

Your business must follow these guidelines to be able to continue using cellular communication when permitted, assuming you’ve obtained consent from the receiving party.

Express written consent

As stated, express written consent is the highest level of consent required by a company to communicate with a consumer via text messaging. Often, it is recommended that companies obtain written consent from consumers to ensure that any legal challenges can be addressed.

Text messaging laws by state

When it comes to text message marketing, in addition to federal laws, some states have their own explicit laws restricting the use of SMS messages from businesses. Just as it is important for companies to follow federal laws, being aware of individual state laws is equally as important.

Currently, 13 states have their own text message marketing laws. Because businesses operate across state lines, they also need to adhere to local laws, even if they are not physically located in the same state as the consumer.

In some instances, these laws are applicable to people within a state, whether they are considered residents of that state. Therefore, a business should err on the side of caution when approaching state-level laws regarding text messaging marketing.

Penalties for violating text messaging laws

The penalties for violating text messaging laws can vary, depending on the violation and if it was a repeated offense. However, penalties can often include a fine of $500 to $1500 per message.

For example, if your business sends out thousands of unsolicited messages at once, each of those messages will incur the same fine. Those fines can add up and end up costing your business a lot of money.

Therefore, it makes good financial sense not to violate the laws restricting the use of text messages for marketing purposes. Additionally, non-financial penalties can be applied that restrict the business use of text messaging communications methods, even those communications that adhere to the applicable laws.

Understand the importance of text messaging laws for your business

Developing an SMS marketing strategy can be an effective method for conveying information to existing and potential customers through their cellular devices. However, businesses seeking to take advantage of this communication method need to be aware of the specific laws regulating the use of SMS marketing.

If you want to create an effective SMS marketing strategy that abides by all text message laws, Mailchimp can help. Mailchimp has worked to develop the tools necessary to ensure your business complies with all applicable federal and state laws concerning the use of SMS messages for promotional marketing purposes.

If you are interested in learning more about SMS marketing or just want to ensure you are abiding by the appropriate laws, check out Mailchimp so you can create a successful marketing strategy for your business.

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