Introduction to SMS & MMS Marketing Compliance
We put together this guide to make it easy for Shopify stores to ensure their text message marketing campaigns comply with U.S. law and U.S. regulations, including the Telephone Consumer Protection Act (“TCPA”).
In order to use the Postscript Platform to send consumers text messages regarding your Shopify store, you need to keep the following questions in mind:
- Have I researched and reviewed all applicable laws, regulations, and guidelines related to text message marketing, including the Telephone Consumer Protection Act and the applicable CTIA (Cellular Telecommunications Industry Association) guidelines?
- Have I obtained TCPA-compliant written consent from each of my consumers, through which they have acknowledged and agreed to receive automated marketing messages from my Shopify store?
The following sections of this guide explain these various issues in more detail.
SMS & MMS Marketing Regulations
In the United States, the Telephone Consumer Protection Act (“TCPA”) and its accompanying regulations control how companies can use SMS and MMS text messaging services to reach out to their consumers. It is your responsibility to ensure that, in using the Postscript Platform to send messages to consumers, you understand and are complying with all relevant TCPA regulations. Therefore, you should make yourself familiar with all applicable TCPA laws and the relevant industry guidelines that build on these laws, including the CTIA guidelines for text message marketing. The TCPA’s regulation of text message marketing / SMS campaigns can be boiled down to the following statement: Consumers have the right not to receive unsolicited marketing communications via SMS, and companies should not send consumers automated SMS marketing text messages unless they have obtained a consumer’s prior express written consent.
Under the TCPA, you may only send a consumer automated marketing messages after that consumer has provided you with “prior express written consent.” This consent may be gathered electronically, including through the use of text messaging keywords. However, at a minimum, the consent you receive must contain explicit language for each and every element identified below, indicating that the consumer acknowledges and agrees:
- To receive recurring marketing messages on the consumer’s mobile phone number
- That your messages may involve the use of an automatic telephone dialing system (“ATDS”)
- That consent is not a condition of purchase
This consent should be retained so that it can be produced in the event of litigation because federal law provides that it is the burden of the person sending the messages to prove that the consumer provided express written consent to text him or her.
Furthermore, you should also ensure you are following the practices contained in the latest version of CTIA’s Short Code Monitoring Handbook and CTIA’s Messaging Principles and Best Practices Guide, as the practices contained therein are designed to protect consumers and ensure your messages are being sent in a manner approved by the nation’s wireless carriers.
Here is an example of TCPA & CTIA-compliant language that should be included where a consumer is giving their consent to receive automated marketing messages:
Updating Your Terms of Service
Disclaimer: We make no representation and warranty regarding their accuracy and no attorney-client relationship is created by providing these agreements. You are encouraged to consult your own legal counsel familiar with the TCPA before finalizing and posting your consumer agreements.
To update your Terms of Service, go to Settings > Legal in your Shopify admin and scroll down to the Terms of Service section inside of your Shopify store setting section. If you don’t have a Terms of Service yet, click on Create from template and make sure to edit all of the [BRACKETED] sections appropriately.
Paste the following into your Terms of Service as an additional section. Be sure to properly edit the four bold [bracketed] terms below:
SMS/MMS MOBILE MESSAGE MARKETING PROGRAM TERMS AND CONDITIONS
User Opt In: The Program allows Users to receive SMS/MMS mobile messages by affirmatively opting into the Program, such as through online or application-based enrollment forms. Regardless of the opt-in method you utilized to join the Program, you agree that this Agreement applies to your participation in the Program. By participating in the Program, you agree to receive autodialed or prerecorded marketing mobile messages at the phone number associated with your opt-in, and you understand that consent is not required to make any purchase from Us. While you consent to receive messages sent using an autodialer, the foregoing shall not be interpreted to suggest or imply that any or all of Our mobile messages are sent using an automatic telephone dialing system (“ATDS” or “autodialer”). Message and data rates may apply.
User Opt Out: If you do not wish to continue participating in the Program or no longer agree to this Agreement, you agree to reply STOP, END, CANCEL, UNSUBSCRIBE, or QUIT to any mobile message from Us in order to opt out of the Program. You may receive an additional mobile message confirming your decision to opt out. You understand and agree that the foregoing options are the only reasonable methods of opting out. You also understand and agree that any other method of opting out, including, but not limited to, texting words other than those set forth above or verbally requesting one of our employees to remove you from our list, is not a reasonable means of opting out.
Duty to Notify and Indemnify: If at any time you intend to stop using the mobile telephone number that has been used to subscribe to the Program, including canceling your service plan or selling or transferring the phone number to another party, you agree that you will complete the User Opt Out process set forth above prior to ending your use of the mobile telephone number. You understand and agree that your agreement to do so is a material part of these terms and conditions. You further agree that, if you discontinue the use of your mobile telephone number without notifying Us of such change, you agree that you will be responsible for all costs (including attorneys’ fees) and liabilities incurred by Us, or any party that assists in the delivery of the mobile messages, as a result of claims brought by individual(s) who are later assigned that mobile telephone number. This duty and agreement shall survive any cancellation or termination of your agreement to participate in any of our Programs.
YOU AGREE THAT YOU SHALL INDEMNIFY, DEFEND, AND HOLD US HARMLESS FROM ANY CLAIM OR LIABILITY RESULTING FROM YOUR FAILURE TO NOTIFY US OF A CHANGE IN THE INFORMATION YOU HAVE PROVIDED, INCLUDING ANY CLAIM OR LIABILITY UNDER THE TELEPHONE CONSUMER PROTECTION ACT, 47 U.S.C. § 227, et seq., OR SIMILAR STATE AND FEDERAL LAWS, AND ANY REGULATIONS PROMULGATED THEREUNDER RESULTING FROM US ATTEMPTING TO CONTACT YOU AT THE MOBILE TELEPHONE NUMBER YOU PROVIDED.
Program Description: Without limiting the scope of the Program, users that opt into the Program can expect to receive messages concerning the marketing and sale of digital and physical products, services, and events.
Cost and Frequency: Message and data rates may apply. The Program involves recurring mobile messages, and additional mobile messages may be sent periodically based on your interaction with Us.
Support Instructions: For support regarding the Program, text “HELP” to the number you received messages from or email us at [COMPANY’S CUSTOMER SERVICE EMAIL ADDRESS]. Please note that the use of this email address is not an acceptable method of opting out of the program. Opt outs must be submitted in accordance with the procedures set forth above.
MMS Disclosure: The Program will send SMS TMs (terminating messages) if your mobile device does not support MMS messaging.
Our Disclaimer of Warranty: The Program is offered on an "as-is" basis and may not be available in all areas at all times and may not continue to work in the event of product, software, coverage or other changes made by your wireless carrier. We will not be liable for any delays or failures in the receipt of any mobile messages connected with this Program. Delivery of mobile messages is subject to effective transmission from your wireless service provider/network operator and is outside of Our control. T-Mobile is not liable for delayed or undelivered mobile messages.
Participant Requirements: You must have a wireless device of your own, capable of two-way messaging, be using a participating wireless carrier, and be a wireless service subscriber with text messaging service. Not all cellular phone providers carry the necessary service to participate. Check your phone capabilities for specific text messaging instructions.
Age Restriction: You may not use of engage with the Platform if you are under thirteen (13) years of age. If you use or engage with the Platform and are between the ages of thirteen (13) and eighteen (18) years of age, you must have your parent’s or legal guardian’s permission to do so. By using or engaging with the Platform, you acknowledge and agree that you are not under the age of thirteen (13) years, are between the ages of thirteen (13) and eighteen (18) and have your parent’s or legal guardian’s permission to use or engage with the Platform, or are of adult age in your jurisdiction. By using or engaging with the Platform, you also acknowledge and agree that you are permitted by your jurisdiction’s Applicable Law to use and/or engage with the Platform.
Prohibited Content: You acknowledge and agree to not send any prohibited content over the Platform. Prohibited content includes:
- Any fraudulent, libelous, defamatory, scandalous, threatening, harassing, or stalking activity;
- Objectionable content, including profanity, obscenity, lasciviousness, violence, bigotry, hatred, and discrimination on the basis of race, sex, religion, nationality, disability, sexual orientation, or age;
- Pirated computer programs, viruses, worms, Trojan horses, or other harmful code;
- Any product, service, or promotion that is unlawful where such product, service, or promotion thereof is received;
- Any content that implicates and/or references personal health information that is protected by the Health Insurance Portability and Accountability Act (“HIPAA”) or the Health Information Technology for Economic and Clinical Health Act (“HITEC” Act); and
- Any other content that is prohibited by Applicable Law in the jurisdiction from which the message is sent.
Dispute Resolution: In the event that there is a dispute, claim, or controversy between you and Us, or between you and Stodge, LLC d/b/a Postscript or any other third-party service provider acting on Our behalf to transmit the mobile messages within the scope of the Program, arising out of or relating to federal or state statutory claims, common law claims, this Agreement, or the breach, termination, enforcement, interpretation or validity thereof, including the determination of the scope or applicability of this agreement to arbitrate, such dispute, claim, or controversy will be, to the fullest extent permitted by law, determined by arbitration in [COMPANY’S CITY, STATE] before one arbitrator.
The parties agree to submit the dispute to binding arbitration in accordance with the Commercial Arbitration Rules of the American Arbitration Association (“AAA”) then in effect. Except as otherwise provided herein, the arbitrator shall apply the substantive laws of the Federal Judicial Circuit in which [COMPANY NAME]’s principle place of business is located, without regard to its conflict of laws rules. Within ten (10) calendar days after the arbitration demand is served upon a party, the parties must jointly select an arbitrator with at least five years’ experience in that capacity and who has knowledge of and experience with the subject matter of the dispute. If the parties do not agree on an arbitrator within ten (10) calendar days, a party may petition the AAA to appoint an arbitrator, who must satisfy the same experience requirement. In the event of a dispute, the arbitrator shall decide the enforceability and interpretation of this arbitration agreement in accordance with the Federal Arbitration Act (“FAA”). The parties also agree that the AAA’s rules governing Emergency Measures of Protection shall apply in lieu of seeking emergency injunctive relief from a court. The decision of the arbitrator shall be final and binding, and no party shall have rights of appeal except for those provided in section 10 of the FAA. Each party shall bear its share of the fees paid for the arbitrator and the administration of the arbitration; however, the arbitrator shall have the power to order one party to pay all or any portion of such fees as part of a well-reasoned decision. The parties agree that the arbitrator shall have the authority to award attorneys’ fees only to the extent expressly authorized by statute or contract. The arbitrator shall have no authority to award punitive damages and each party hereby waives any right to seek or recover punitive damages with respect to any dispute resolved by arbitration. The parties agree to arbitrate solely on an individual basis, and this agreement does not permit class arbitration or any claims brought as a plaintiff or class member in any class or representative arbitration proceeding. Except as may be required by law, neither a party nor the arbitrator may disclose the existence, content, or results of any arbitration without the prior written consent of both parties, unless to protect or pursue a legal right. If any term or provision of this Section is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of this Section or invalidate or render unenforceable such term or provision in any other jurisdiction. If for any reason a dispute proceeds in court rather than in arbitration, the parties hereby waive any right to a jury trial. This arbitration provision shall survive any cancellation or termination of your agreement to participate in any of our Programs.
Miscellaneous: You warrant and represent to Us that you have all necessary rights, power, and authority to agree to these Terms and perform your obligations hereunder, and nothing contained in this Agreement or in the performance of such obligations will place you in breach of any other contract or obligation. The failure of either party to exercise in any respect any right provided for herein will not be deemed a waiver of any further rights hereunder. If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable. Any new features, changes, updates or improvements of the Program shall be subject to this Agreement unless explicitly stated otherwise in writing. We reserve the right to change this Agreement from time to time. Any updates to this Agreement shall be communicated to you. You acknowledge your responsibility to review this Agreement from time to time and to be aware of any such changes. By continuing to participate in the Program after any such changes, you accept this Agreement, as modified.
SMS/MMS MOBILE MESSAGING MARKETING PROGRAM
We respect your privacy. We will only use information you provide through the Program to transmit your mobile messages and respond to you, if necessary. This includes, but is not limited to, sharing information with platform providers, phone companies, and other vendors who assist us in the delivery of mobile messages. WE DO NOT SELL, RENT, LOAN, TRADE, LEASE, OR OTHERWISE TRANSFER FOR PROFIT ANY PHONE NUMBERS OR CUSTOMER INFORMATION COLLECTED THROUGH THE PROGRAM TO ANY THIRD PARTY. Nonetheless, We reserve the right at all times to disclose any information as necessary to satisfy any law, regulation or governmental request, to avoid liability, or to protect Our rights or property. When you complete forms online or otherwise provide Us information in connection with the Program, you agree to provide accurate, complete, and true information. You agree not to use a false or misleading name or a name that you are not authorized to use. If, in Our sole discretion, We believe that any such information is untrue, inaccurate, or incomplete, or you have opted into the Program for an ulterior purpose, We may refuse you access to the Program and pursue any appropriate legal remedies.
California Civil Code Section 1798.83 permits Users of the Program that are California residents to request certain information regarding our disclosure of the information you provide through the Program to third parties for their direct marketing purposes. To make such a request, please contact us at the following address:
[INSERT COMPANY NAME]
[INSERT COMPANY ADDRESS]
[INSERT COMPANY EMAIL ADDRESS]
Save your changes by clicking the Save button at the top of the page.
Receiving Consent To Send Text Messages At Checkout
As mentioned in the SMS & MMS Marketing Compliance Introduction, consumers have to provide “express written consent” before they can receive marketing communications via SMS. This article covers the three steps you need to take in order to receive full consent from the customer at the time of checkout. They are:
- Request that the customer sign up for marketing updates
- Explain that the customer will be receiving text messages from you in a TCPA-compliant manner, meaning that they acknowledge and agree: (a) to receive automated, recurring marketing messages to the consumer’s mobile phone number; (b) which may involve the use of an automatic telephone dialing system (“ATDS”), and (c) that consenting to receive such messages is not a condition of purchase.
- Request that the customer provide their phone number in order to receive the text messages
First, update your marketing sign-up option so that it is shown at checkout. Go to Settings > Checkout and scroll down to the Email Marketing section. Make sure Show a sign-up option at checkout is checked and Preselect the sign-up option is not checked.
Including Opt-Out Language in Messages
Under the TCPA, you must ensure that you remove customers from your text messaging marketing campaign if they make a “reasonable” request asking to be removed. This is commonly referred to as the “opt-out” process.
Postscript provides functionality so that your SMS subscribers are able to opt out of SMS marketing messages at any time by replying “STOP” to any message you have sent. Instructions on how to opt out (“Reply STOP to unsubscribe”) are included in each subscriber's confirmation message.
Our Visual Message Builder makes it easy to add this language when you are creating a message. If you are sending regular campaign messages, you should include this opt-out language at least once per month.
We will automatically process and confirm all opt-out requests that you receive through your Postscript phone number(s). Please note that customers who have opted out have the ability to opt back in by replying “START” at any time. This information is provided in the opt-out confirmation that we send when a customer opts out of SMS marketing messages.
For more information on how to add opt-out language to your messages, please see our Messaging Best Practices.
Create email campaign links to make it easy for mobile users to text your keyword to you, while desktop users will be routed to a landing page with a subscribe form.
Go to the Grow List section in Postscript and click the Create Link button.
Select your Keyword that will be triggered when subscribers sign up. Then add the URL for the landing page that desktop users will be routed to (mobile users will be taken to a pre-populated message to text to your shop’s phone number).
Click Generate Link and copy the URL from the dialog that pops up. If you lose it, you can always regenerate it later.
Test this URL by clicking it on your desktop and your phone. We recommend that you send yourself an email with just a link to that URL, and then try clicking it from your phone’s email app as well as your desktop email app.
Once you’ve tested it, you can use this URL anywhere that you want people to be able to subscribe to your list using that Keyword.