Article review; Retailing Giant “Targets” Your Cell Phone
Businesses are faced with a need to navigate around a myriad of legal issues on a daily basis. Business activities in all classes risk going overboard into the wrong side of law if care is not taken to avoid this. Activities such as procurement, hiring, firing are all guided by strict regulation, which inhibits the business proprietor from acting in whichever manner despite their establishments being private. The need to establishment of law regulating the conduct of business is the need to protect third parties interacting with the business enterprise and shielding them from inappropriate engagement with the business. A private company, for instance, lacks the liberty under law to hire and fire at will. The freedom to do so would greatly inconvenience employees where job security expires at the end of each working day. Law also establishes the relationship adopted by a business entity in interacting with its environment. Business environment in this context means all the aspects affected by the conduct of the activities of that entity either directly or indirectly. These may include the physical environment where laws are enforced to curb pollution for instance or the public where law is crafted to guide how businesses should compensate third parties in case of interference of other people’s interests by third parties. Third party Insurance law is an example of law crafted in guiding relationships between businesses and non-affiliated interests.
This paper is going to explore the relationship between ethical behaviors and advertising in relation to law by reviewing the article, ‘Retailing Giant “Targets” Your Cell Phone’ in ‘Lawyers and Settlements’, an online legal journal.
The legal question raised by the article is the use of automated text messages in advertising and the regal reprieve available for victims of this phenomenon. Automated text message advertising is not only irritating to the recipient, but in some instances costs money. Majorities of mobile phone users do not have active subscriptions to the text bundle and are therefore charged for the reception of these spam messages from advertisers. Target utilizes customer information from third parties and exploits this information by sending advertising texts to them. However, Target and other firms employing this advertising strategy risk facing lawsuits from the victims. The Telephone Consumer Protection act protects telephone users from unauthorized telemarketing drives, where the offending firm is liable to compensate their victims. As stated in the article, The Telephone Consumer Protect Act (TCPA) sees it as personal interference and an invasion of your privacy. The act provides for a $500 fine for every third-party automated call or text made to your cell number. (Brenda Craig, feb18th 2013)
Use of an individual’s contact information in an advertising drive without their consent contravenes many ethical restrictions. In direct marketing, it is paramount that the advertisers check with their target customers of their willingness to participate or their information be used in such drives. (Batista, 2003) The case of target is different as the contact details they use are from an unknown source, which is in further breach of privacy laws that afford an individual from unsolicited attention.
The article does not specify whether the service rendered by target has an option to opt out, but going by the intruding nature of the text and the mysterious source of contacts for target, target seem to be in complete control of to whom and when to send these messages.
The applicable law in bringing offenders such as target to book, The Telephone Consumer Protection Act (TCPA) was enacted in 1991 to primarily protect consumers from aggressive telemarketers. The specific subsections that find Target liable in this case are; ‘Section 227(b)(1), in particular subsections (A), (B) and (C), which relate to calls or transmissions made using an automatic telephone dialing system (“ATDS”), an artificial or prerecorded voice or a fax machine’. In recent interpretations of this law, making of a call has also been interpreted as to include, ‘the sending of a text’. This interpretation seems to borrow on the intent the law was created rather than the substance. Target is therefore directly liable for the text messages it has sent out to customers without their consent under this modern interpretation.
Target, has in fact suffered the first blows as a result of using this advertising strategy, A Houston law firm, Reich & Binstock, has filed a class-action suit against the retailing giant for pumping thousands of automated text advertisements out to consumers. Using a third party company, Target has embarked on an unprecedented advertising campaign where thousands of mobile phone users are the targets of this advertising venture. The law firm Reich & Binstock has actually filed three previous suits under the TCPA with the target suit being the fourth one and showing a strong intent to cash in on the ignorance of companies regarding the existence of this law, and the possible financial harm, (gain to Reich & Binstock) they are likely to face.
In avoiding potentially expensive lawsuits under the TCPA, companies should review their policies and practices in consideration of these new practices and interpretations of the law. Among the things they should consider revising is the inclusion of opt out options and express written consent for automated telemarketing drives to individual’s cell phones.(Batista, 2003)
"Retailing Giant “Targets” Your Cell Phone." Lawsuits, Legal News & Issues, Lawsuit Settlements, Class Action Lawsuits N.p , n.d. Web. 16 Oct. 2013.
Batista, Paul J. "Telemarketing and the TCPA: Let the Seller Beware: Telephone Consumer Protection Act (47 U.S.C. § 227)." Journal of The Academy of Marketing Science (2003): n. pag. Print.