Companies using SMS to deliver marketing messages - as well as marketing agencies or service providers providing these services to such companies - must comply with "anti-spam" like regulations in the new Regulations on the Management of SMS ("SMS Regulations"), which came into effect on 30 June 2015.
The SMS Regulations provide that "SMS content providers" (i.e. any company engaging a service provider to send a marketing SMS) and "SMS service providers" (i.e. any company providing SMS marketing and/or sending services), when sending a marketing SMS to an individual:
- Must only send an SMS marketing message with consent. It is expressly set out in the SMS Regulations that silence is not consent.
- Should provide information regarding the type of marketing SMS that will be sent, and the frequency and the period during which the marketing SMS will be sent when obtaining such prior consent.
- Should make available to the recipient an unsubscribe facility that is easy to use when sending a marketing SMS. There must not be hurdles or difficulties presented to an individual when he/she is trying to unsubscribe.
- Should identify the sender of SMS marketing message at the time of sending the message.
- Should no longer send marketing SMS to the recipient if he/she subsequently withdraws consent.
The SMS Regulations generally brings China in line with the international approach regarding SMS marketing.
The SMS Regulations further introduce a user complaint mechanism. Users who believe that they are "harassed" by marketing SMS or they receive SMS that includes content that is prohibited under law may lodge a complaint with the SMS service provider or the Junk Mail Complaint Handling Centre, authorised by the Ministry of the Industry and Information Technology to handle such complaints.
The SMS Regulations also apply to companies delivering marketing messages similar to SMS via the Internet, as well as marketing agencies or service providers that provide these services to such companies. The relevant message content providers and message service providers should be considered "SMS content providers" and "SMS service providers" respectively for the purpose of the SMS Regulations.
At this stage the SMS Regulations only apply to onshore SMS content providers and SMS service providers (i.e., companies in the territory of China). Offshore companies (i.e. companies that are outside China) that would have been considered a SMS content provider or a SMS service provider had they been onshore should note the potential impact of the SMS Regulations on their products/services and operations. For example, an offshore marketing campaign automation service provider (which may be considered a "SMS service provider" if it provides the services within the territory of China) should review its campaign tools and setup to assist its clients (the onshore SMS content providers) to comply with their own obligations under the SMS Regulations, such as the consent and content requirements.