Unsolicited Communications in the UAE: Countdown to Compliance

Will new UAE telecomms policy help to cut spam marketing, ask Lenka Glynn and Kelly Tymburski of Pinsent Masons LLP

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Unsolicited Communications in the UAE: Countdown to Compliance The new UAE policy on unsolicited communications comes into effect at the end of June.
By  Lenka Glynn , Kelly Tymburski Published  June 20, 2010

Does it seem that almost every day another new company starts texting or emailing you with their most recent ‘special offers'? Then you are not alone - the sheer volume and ubiquity of unsolicited communications in the UAE seems to have reached epic proportions. Thankfully, however, it would appear that help (in the form of regulatory intervention) is on its way.

By no later than 30th June 2010, all telecommunications licensees in the UAE ("Operators") will need to be fully compliant with the new Unsolicited Electronic Communications Regulatory Policy ("Policy") issued by the UAE Telecommunications Regulatory Authority ("TRA") pursuant to Federal Law No. 3 of 2003 ("Telecoms Law"). The Policy establishes some relatively comprehensive obligations on Operators in respect of minimising unsolicited electronic communications.

In this article, Lenka Glynn and Kelly Tymburski of Pinsent Masons LLP briefly explore what this Policy entails and how it might impact telecommunications services and related commercial and customer arrangements in the UAE.

The Policy in a Nutshell

The overarching objective of the Policy is to minimise the transmission of unsolicited electronic communications which have a ‘UAE Link'. As such, the Policy is targeting unsolicited electronic communications which:

• originate in the UAE, or from an individual or company physically located in the UAE;

• are accessed by a device located in the UAE; or

• are sent to a recipient that is physically present in the UAE.

An unsolicited electronic communication is, quite simply, any form of electronic communication (including text and email messages) that is sent to a recipient without obtaining that recipient's consent. Accordingly, the Policy seeks to establish appropriate consent requirements and implement adequate controls at the Operator level to help minimise unsolicited communications and their adverse impact on the communications industry and its customers.

The Policy does not apply to any communications sent by government entities in the UAE; however, this exclusion does not extend to government-owned commercial enterprises.

The Policy contemplates the enactment of various annexes, which are envisaged to deal with more discrete or additional aspects of unsolicited electronic communications. These annexes may set forth additional, more stringent or simply alternative requirements and obligations in respect of specific forms of unsolicited communications. One such annex - namely, Annex (1) to the Unsolicited Electronic Communications Regulatory Policy: Mobile Spam, was issued contemporaneously with the Policy ("Mobile Spam Annex") and is addressed in greater detail later in this article.

New Obligations for Operators

The Policy imposes affirmative obligations on Operators to minimise the transmission of unsolicited electronic communications over their networks, in particular marketing electronic communications sent to a recipient (without obtaining the recipient's consent) with the purpose of advertising and promoting or offering to supply goods or services (‘Spam').

In discharging these obligations, Operators are required to take "all practical measures" to minimise transmission of Spam across their networks, and must also take "appropriate measures" to promote the education and awareness of their respective customers as to the existence of the Policy and its requirements. The TRA has injected further clarity into these high level obligations by specifying that an Operator will also be found non-compliant with the Policy where it becomes aware of Spam having a UAE Link being sent over its network and it does not employ all practical means to end such transmission and prevent future occurrences of the same.

In respect of the Operator's own marketing electronic communications, the Policy establishes obligations for Operators to obtain their customers' consent before transmitting these communications to their customers.  Such consent must be obtained in a clear and transparent manner, and further in accordance with the principles set out in the Policy. Each Operator must also ensure that the consent principles espoused in the Policy are reflected in any written agreement it enters into with its customers.

The Policy also makes it clear that it will not be permitted for Operators to withhold or deny services to any customer on the basis of that customer's refusal to provide such consent. Additionally, where applicable, options for customers to subscribe/ unsubscribe to the receipt of communications must be made available at no charge to the customer. Operators are also prohibited from using, selling or knowingly allowing access to any hardware or programs that facilitate electronic address harvesting or generation.

The Mobile Spam Annex

Mobile Spam means Spam sent in the form of SMS, MMS and other type of messages transmitted between mobile telephone devices. The Mobile Spam Annex sets out additional (and in some instances differing) terms, conditions and obligations relevant to Operators in the context of Mobile Spam.

The Mobile Spam Annex places a general obligation on Operators to provide customers with information and resources to help them minimise the level and impact of Mobile Spam, including information on the Operator's Mobile Spam policies, advice on how to handle incidents of suspected Mobile Spam and the provision of facilities through which customers can report Mobile Spam received to the Operator.

Some of the obligations set out in the Mobile Spam Annex in respect of Operators' own marketing communications include:

• consent requirements in respect of existing customers may be dealt with by Operators on an 'opt-out' basis (as opposed to the more stringent 'opt-in' approach advocated in the Policy generally and which applies under the Mobile Spam Annex to new customers); and

• no mobile text messages related to the Operator's own marketing communications may be sent to customers between the hours of 9:00pm and 7:00am.

The Mobile Spam Annex also institutes obligations and specific measures that Operators must comply with in respect of the provision of Operator messaging services (i.e arrangements whereby the Operator sends messages on behalf of a third party to its customers). Most notably, Operators must ensure that any relevant agreements in respect of such messaging services include mandatory provisions set out in the Mobile Spam Annex and are otherwise compliant with the Policy. Such mandatory provisions impose obligations on the user of the Operator messaging services similar to those imposed directly on the Operator - in particular obligations to obtain consent and a prohibition on delivering such communications between the hours of 9:00pm and 7:00am.

As with the Policy, all Operators must be in full compliance with the Mobile Spam Annex by no later than 30 June 2010, with the exception that Operators were obliged to have submitted their mobile Spam-related opt-in / opt-out and subscribe / unsubscribe policies and facilities to the TRA for verification and approval by 31 January 2010.

How Will the Policy Impact UAE Telecommunications Services?

Implementing many of the new requirements of the Policy (e.g. opt-in / opt-out and subscribe / unsubscribe facilities) is likely to demand a significant investment of Operator resources and time. Operators will need to ensure that the new business practices are adequately understood and executed. These new business practices will not only impact on Operators, but are likely to impact on advertising and promotional strategies of business that use Operator messaging services as part of their advertising channels.

Additionally, it will now become even more important for customers (both individuals and organisations) to closely review all documentation they are required to sign before entering into contracts with an Operator. This will be necessary to help ensure customers do not inadvertently consent to unsolicited communications which they do not want to receive, as this would effectively negate any benefit that might otherwise accrue to them by virtue of the provisions of the Policy.

Furthermore, it is possible that measures and requirements similar to those imposed in respect of Mobile Spam will be introduced by the TRA in the future in respect of other types of unsolicited electronic communications, such as unsolicited voice marketing calls. Therefore, this possibility should be seriously considered by companies currently contemplating future marketing campaigns and strategies connected to the UAE.

It is not possible to predict with any degree of certainty exactly how significant the impact of the Policy might be for the UAE telecommunications market. Indeed, the efficacy of the Policy will depend significantly on the type and quality of practical measures and mechanisms implemented by the Operators in response to the Policy. However, if the compliance deadline of June 30th marks the beginning of an era with a noticeable decrease in unsolicited communications in the UAE, then it is certainly a step in the right direction - at least from the perspective of customers.

Lenka Glynn is a partner, and Kelly Tymburski an associate of, Pinsent Masons LLP.

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