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On the case - December 2007

Is Bluetooth broadcasting covered by data protection law?

Data protection laws often struggle to cover all the developments in marketing channels and the UK Information Commissioner’s Office has recently had to make a u-turn on whether Bluetooth broadcasting is covered by the UK’s regulations.

Bluetooth provides a way to connect and exchange information between mobile devices (including mobile phones) over a secure, globally unlicensed short-range radio frequency. In marketing terms, Bluetooth provides a huge opportunity to deliver timely and relevant messages to mobile users in a specific radius – for example, alerting users to a special offer in a specific store when they enter a shopping mall.

However, the big issue is getting the user’s consent.

UK regulations implement the 2002 Directive on Privacy and Electronic Communications. Despite an effort to ‘future proof’ the directive by a broad definition of ‘electronic mail’ covering email, text, picture and video marketing, the ICO has had to revise its previous advice that Bluetooth messaging is in scope. The reason for the reassessment was a technical challenge that the regulations only apply to messages sent over public electronic communications networks; reluctantly, it would seem from the language used, the office has concluded that Bluetooth messages are not sent using a public network.

Commentators on mobile marketing have suggested that this represents a step backwards and will open up users of Bluetooth to a deluge of ‘blue spam’. The more gung-ho practitioners argue that users could be said to be inviting messages by enabling their devices to Bluetooth mode (asking for it, so to speak).

Despite the ruling, the mobile marketing ‘establishment’ has come out firmly on the side of consent. Rather than wait for a change in the law, industry practitioners have embraced codes of practice which require consent for Bluetooth messaging. DMA UK guidelines suggest promoting the availability of Bluetooth content on traditional media (such as a poster or billboard) and inviting people to ‘pair’ with the marketing campaign. If the user subsequently wants to opt out, they can delete the pairing. The first message to the device should explain that in order to opt out of future marketing messages, this is all they need to do.

Trivia enthusiasts may wish to know that the term Bluetooth refers to one Harald Bluetooth, king of
Denmark in the late 900s. He managed to unite Denmark and part of Norway into a single kingdom. It remains to be seen whether Bluetooth users will allow themselves to be united with marketers in a similar way.

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