Ruling: Senders of unsolicited free texts can be sued

July 25, 2012 - Consider this scenario: if someone receives an unwanted text message but that message doesn’t cost the receiver a penny, can he or she make a federal case out of it? Even without any economic harm? According to a July 20 decision by the U.S. District Court for the Northern District of California in Smith v. Microsoft Corp., text senders can be sued – because text messages fall under the Telephone Consumer Protection Act (TCPA) and may violate the "right of privacy."

TCPA, best known to ABM members for its ban on unsolicited advertising faxes, also bans telemarketing calls to cell phones. A few years ago, the Ninth Circuit Court of Appeals added text messages to the mix, determining that they fit the statute’s definition of “calls,” and hence were covered by the act, according to ABM information policy counsel Mark Sableman.

Last week, the court in California ruled that legal harm can be found in this scenario even in the absence of economic harm. In Smith v. Microsoft, the district court decided plaintiffs could bring claims against Microsoft for unsolicited text messages that promoted the Xbox game console. A claim could be filed even if a carrier didn't charge for receiving the message. The statutory violation alone was sufficient injury, the court concluded, drawing on other cases that found harm to a plaintiff’s abstract “right of privacy” as sufficient enough to support legal claims.

“The takeaway for b-to-b publishers is that innovative communications can meet legal roadblocks,” explains Sableman. “Email, fax and telephone marketing communications – and text messages as well, as this case illustrates – all raise special legal issues that should be considered at the outset.”

By Elizabeth A. Reid