The Advertising Standards Authority (ASA) has ruled against O2 after a complaint that the mobile networks text message marketing failed to provide an opt-out.

The dispute began with an unamed female O2 customer in Hertfordshire. She received a text message which stated:

Get sport alerts & more. Text ACTIVE to 2020 2 set up then go 2 Info services 2 subscribe 2 alerts. Terms@o2.co.uk. Each alert from 13p to receive.

Her objection was that the text message did not include an opportunity for her to opt-out of receiving further marketing text messages.

The ASA examined the consent given by the customer to O2 in 1998 when the contract was signed with BTCellnet.

It included consent to receive marketing communications. But the ASA considered text message marketing was not widely used in 1998. The ASA thus decided that O2 lacked explicit consent for text message marketing.

An O2 spokesman said:

We were disappointed with the ASA ruling. We believed we had customer consent through the terms and conditions of our service. We are now looking at the possibility of introducing an opt-out for these types of text messages.

The case highlights differences between the CAP Code – a set of industry rules applied by the ASA – the Privacy and Electronic Communications Regulations and a European directive of 2002 .

Shelagh Gaskill a partner with Masons Solicitors an international law firm specialising in IT law said these mixed messages create confusion for SMS marketers.

Although the ASA acknowledged that O2 obtained consent to send marketing communications it had not obtained consent to send them by text message. The complainant should have been told she had the opportunity to opt out in every text message said Gaskill.

The ASA was not saying that text message marketing was wrong just that the nature of the consent was not explicit so an extra requirement for opt-out instructions with each text message was called for.

Gaskill claimed the O2 case highlights the contrast between the guidance followed by the ASA and the guidance published by the Information Commissioner the UKs privacy chief.

The contrast is most visible when a marketer does have explicit consent she went on. Does a text message marketer need to offer an opt-out with every message? The ASA says not if there is explicit consent but the message from the Commissioner is always yes.

The ASA also rapped cosmetics company Avon over a promotion it ran with Orange. Avon promised a voucher for a free Orange pay-as-you-go phone for customers spending 15 or more on products from its Avon Anew range. But Avon ran out of vouchers leaving scores of disappointed customers.

The ASA told the promoters: to take greater care when estimating demand for free gifts on the basis of previous promotions and to minimise disappointment in the event that demand for future promotional items exceeded supply.

This follows an agreement between graphics card maker NVIDIA Corporation and Samsung to fit the GoForce 2100 media processor to Samsungs new SCH-M500 Mobile Intelligent Terminal phone launched in Korea last month. NVIDIA also supplies chips to Motorola Mitsubishi and LG.

Officially at least no call discounts are available on the new Company Caller tariff while the old Company Caller tariff (which allowed the dealer to offer discounts on call charges) has been removed for new business.

Dealers are concerned that they can no longer offer a competitive package to some of their customers with more than 50 handsets who demand a flat-rate deal.

The previously competitive (after discounts) Company Caller tariff has been removed from both our customer acquisition and retention armouries at a time when Vodafones stated aim is to make further inroads into the SME market said Mark Finlayson MD of Southampton-based Next Communications.

Vodafone business propositions manager Ben Sefton defended the new tariff.

You need to look at the overall communications picture and the communications culture within a company to realise the full benefit of Company Caller and the value the proposition offers he said.

Calls that were previously made from fixed lines to mobile can now be made mobile to mobile for free.

Some dealers believe Vodafone will be forced to offer call discounts on flat-rate deals for larger customers if it is to remain competitive in this sector. They expect the tariffs to be tweaked over the coming months.

The majority of Vodafones Perfect Fit for Business tariffs which include the Sharetime option (free Vodafone-to-Vodafone calls) have been welcomed by dealers (Mobile News July 26) as has the initiative that sees the network running business-facing ads on mainstream television.

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The retailer has teamed up with PhotoBox a company that sells digital photographic services.

The Carphone Warehouse photo service will let customers send their images via MMS to free online album space share photos order prints and order images to be printed on to items such as bags cushions and mouse mats.

Prints cost 19p each and gifts with customised photographs range from 10 for a mouse mat to 35 for a travel pouch.

The Carphone Warehouse says the initiative is a reaction to record sales of camera phones helped by free camera phones on all contracts.

Carphone Warehouse European head of purchasing Rupert Elvins said: PhotoBox is the ideal partner for us as it has great technological know-how and experience in the digital imaging world. Our customers constantly demand more from their phones and we want to help them realise the potential that camera phones offer.

Elvin said that camera phone sales are rocketing as the technology improves. New technology can be confusing for some people so the site will also include tips on downloading and sharing images he added.

Athief who walked into Carphone Warehouses Oxford Street store and grabbed a phone has been discharged for a year and ordered to pay 55 costs.

The Federation of Technological Industries (FTI) has dismissed Customs and Excise predictions it will win the joint and several liability case to be heard by the European Court of Justice.

Customs and Excise lost an appeal to prevent the matter being referred to Europe and had to pay the Federations appeal costs.

FTI solicitor Robert Holland was surprised by Customs upbeat reaction to the proceedings after its High Court defeat.

Customs appealed against the decision of the High Court to refer questions to the European Court as to whether there was authority under Community law to enact the joint and several liability provisions. The Court of Appeal dismissed Customs appeal and awarded the FTI its costs. The FTI is pleased that the Court of Appeal recognised that it had to refer the questions.

Immediately after it lost the appeal Customs and Excise stated it was pleased the Court of Appeal had supported Customs efforts to tackle VAT fraud.

The statement said:

We welcome the Court of Appeals support of our actions to tackle this most serious and organised VAT fraud which costs the UK taxpayer and robs our public services of more than 1 billion a year.

The court has stated that we should continue to apply these laws and we will do so proportionately and appropriately to stamp down on this systematic attack on the VAT system.

The High Court has already ruled that our anti-fraud measures are proportionate and compatible with human rights. Todays ruling strengthens our case before the European Court of Justice said Customs.

Lord Justice Wards final summation noted:

It is with real misgiving that I conclude we must refer to the Court of Justice … Dishonest trade in these goods must be stamped out … I encourage the Commissioners to apply the impugned law in expectation of eventual victory in Luxembourg.

Holland countered that it was irrelevant what Lord Justice Ward believes about Customs chance of winning in Luxembourg.

Holland pointed out another quote from the summation which said: With regret I conclude that the direct application of Community law in this case is not so obvious as to leave no scope for any reasonable doubt. I am compelled therefore to refer the questions to the Court of Justice.

Holland added: When this case was heard in February Lord Justice Lightman said he thought we would be victorious in Luxembourg.

Now Lord Justice Ward has said he believes Customs will be. Out of four high court judges one supports us another supports Customs and Excise and the two remaining judges are undecided. What cannot be ignored is that this is a matter to be decided by Europe.

Lord Justice Jacob said Customs can try to apply provisions to apply notice. However this just gives people scope to appeal.

They can argue that Customs has no authority under community law to serve joint and several notices until the matter has been decided by the European Court.

Regardless of what Lord Justice Ward said about who he thinks will be successful he admits it must be decided by the European Court.

This is what we sought and won permission for before the High Court in February.

At those proceedings Lord Justice Lightman said he thought we would be likely be victorious. He even cautioned Customs and Excise to exercise great care before applying its joint and several liability provisions until the issue is decided one way or another.

The company was created in 1987 by Joe Case using his initials for its name.

Darren Ridge was made a partner in 1996. We ran KJC as a trading concern until Darren and I sold it to PNC Telecom said Case.

The sale took place in June 2000. The board of PNC appointed Darren as MD of the new KJC division of PNC with me as a director.

Users take a picture and add text. The picture is then transformed into a normal postcard and sent to the recipient. Both networks charge 1.50 per card plus the cost of the MMS. Images and text are checked for decency before being processed.

The Vodafone live! postcard service become available to its customers this week. Just like the service available to O2 customers it enables users to create and send a postcard without having to go to the local gift shop buy a stamp or even find a post box.

O2 said it was flattered by Vodafones response to its own postcard service:

It confirms there is a demand to turn photo messages into mementos. Over the summer we have seen a big increase in usage of our service as customers share their holiday moments in a more permanent way said an O2 spokesperson.

Vodafone promises delivery within two to three days. O2 aims to send the postcard out by first-class post the same day it is sent by the user.

A Vodafone spokesman said:

We produce services for our customers needs in the same way that O2 provided a pay-as-you-go service to its customers following Vodafones lead.

Intek intends to have a retail presence of 40 stores in the southwest of England within the next two years.

Intek will appoint two new corporate sales executives this week. It is also looking to add two more staff to the web sales team and expand its training team. It is in the process of expanding Intek House its headquarters in Paignton Devon to accommodate new personnel and future appointments.

Intek MD Manny Hussain commented: I have interviewed heavily over the past several weeks to fill 10 positions.

We want to expand our retail base and establish ourselves as a substantial regional retailer. We need to have a presence in certain towns in the south-west of England in which we dont exist at present.

Intek which was in the running to buy fellow south-west dealership WestTalk before JAG took it over will consider buying out other retail chains to expand its presence according to Hussain.

If a company like WestTalk came along in the future we would consider a bid provided the money and the timing was right he said.

They will also be able to download full-length tracks to their phone without the need for a separate music-playing device.

The new services follow deals with multimedia developer Bounce Technology and music download supplier Chaoticom.

The Bounce system is called Fireplayer and uses the phone keys as a virtual mixing desk. Chaoticoms Music Player software lets full-length tracks be downloaded to a phone.

Downloaded tracks for Fireplayer will cost 3.50. Each downloaded song on Music Player will cost from 1.50 and the service offers more than 200 artists to choose from.

New artists and tracks will be added constantly.