Technology, bless it, is sometimes a double-edged sword. Getting high volumes of spam via SMS on your cell phone is definitely the wrong side of the blade.
What can you do?
Read the article on receiving spam originating in South Africa, which sets out the legal position regarding unsolicited e-mail communications. Unsolicited SMS communications also fall under section 45 of the ECT Act and recipients can use its provisions to take an active part in fighting a growing problem.
The following basic rules apply to SMS spam:
There must be a mechanism for recipients to unsubscribe from the spam mailing list. This could potentially be a number to SMS (we believe the sender should bear the cost butů) or a web site address which can be used to unsubscribe your number. It could even, at a stretch, be an industry site set up to regulate SMS spam (see below).If this is not present it is a criminal offence carrying a fine or a maximum of 12 months imprisonment.
If there is a way to unsubscribe and it is used then it is an offence to send any further unsolicited SMS messages to that number. The same penalties apply.
The spammer has to supply the source from which the cell phone number was obtained if requested to do so. If these details are not supplied it is again a similarly punishable offence.
How do I found out who has sent the SMS spam?
This takes a little effort.
All messages will show a sender number and a message centre number. While the number may be spoofed the message centre cannot.
Once you have this go to www.smscode.co.za which is a web site set up by the three local network operators (Vodacom, MTN and Cell C) in conjunction with the South African Marketing Federation (MFSA). The site allows consumers to
First check that the SMS is a commercial SMS
Identify the service provider from which the spam SMS was sent
Contact that provider and ask to be unsubscribed from the relevant list - the SMS does not originate from the service provider but they will put you in touch with the relevant party
Report unsolicited commercial SMS.
If the SMS is solicited, i.e. it has been received because you have a commercial relationship with the sender, then you will be responsible for directly contacting the sender to unsubscribe.
The SMS Code of Practice
The site also contains an SMS Code of Practice which was drafted in 2002 with the participation of industry role players. The stated objectives of the Code are to prevent unsolicited SMS messages and to promote responsible use of SMS as a marketing medium. The Code is an attempt at self-regulation as against the legislated regulation contained in the ECT Act.
The Code sets out the following rules
- Message originators must not send Commercial SMS unless:
1.1. the recipient has requested the SMS, OR
1.2. the recipient has a prior commercial relationship with the message
originator and would reasonably expect to receive marketing communications
from the originator, OR
1.3. where the originator has no prior commercial relationship with
the recipient, the organisation supplying the originator with the recipient's
information has the recipient's consent to do so for the purpose of
- Message Originators must allow Recipients to unsubscribe from Commercial
2.1. Notifying the Message Originator directly, OR
2.2. Being referred by the Service Provider to the Message Originator.
- Message Originators must include their name or identifier in a Commercial
3.1. Service Providers and Message Providers must include a valid originating
number in all Commercial SMS messages.
3.2. Network Operators must provide the Originating Numbers issued by
them to Service Providers or Message Originators and their names and
contact details to the MFSA for inclusion on the site www.smscode.co.za
as part of their contractual agreement with the Service Provider or
The full Code is available here
When you get past the stage of grudgingly but willingly spending a quick 30 seconds deleting SMS spam and want to take action to free up your inbox, try the smscode site and see if the self-regulatory route works. If not, and if the itch is big enough, take a deep breath and try playing hardball with spammers through laying a charge under section 45 of the ECT Act. When enough people start doing itů.
06 Apr 2004
This article is intended to provide general guidance and does not constitute professional advice relating to specific instances. Should you wish to place any reliance on the information presented in this article we strongly advise that you consult your legal advisor or the Electronic Law Consultancy - email@example.com