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In this article, we examine Warciak v. Nikil, Inc. and discuss the legality of text message marketing in relation to the Telephone Consumer Protection Act (TCPA).
The TCPA was created in the 1990s to protect consumers from unwanted marketing phone calls. With the emergence and rise of text message marketing, TCPA rules are increasingly challenged in court.
About Warciak v. Nikilk, Inc.
The Down to Lunch app offers friends and colleagues an easy way to connect and spontaneously meet in person for events and activities such as lunch. In this case, the plaintiff, Warciak, didn’t appreciate the invite to join his friend for lunch and sued Nikil, Inc., the owner of the Down to Lunch app.
Warciak alleged that he received a text message alerting him that a friend had invited him to join the Down to Lunch app. Text invites are a common growth tactic among apps, thanks to the incredibly high open and click rates for text messages. Another incentive for apps to include an “invite friends” feature is the personalized touch since the invitation appears to come from a recipient’s friend.
A Summary of the Case
Warciak claimed that Down to Lunch users aren’t aware that the app sends text messages to recipients in their contact list. He claimed that Down to Lunch was responsible for generating and sending these messages because users don’t realize that “invite friends” will invite everyone in their contact list.
Down to Lunch (Nikil, Inc.) immediately filed for a dismissal, attacking the legal adequacy of Warciak’s complaint. Nikilk, Inc. argued that even if everything Warciak said is true, Down to Lunch did not initiate the message. Warciak’s friend did. The defendant claimed that Warciak was suing the wrong person.
The court decided that Warciak’s friend not knowing the app would send the text was irrelevant. Whether or not a consumer understands technology doesn’t change their liability in the situation. This case was resolved relatively quickly in less than a year.
Two Cases Shaped This Decision
Among pivotal TCPA SMS messaging rulings, two cases stand out.
Glide, a video chat messaging app, made several errors in judgment for its SMS marketing. The company didn’t allow the user to play a role in whether Glide would send the message. Glide decided who received the message, whether or not to send the message, when to send it. Understandably, the outcome of this case was not in Glide’s favor.
TextMe, a messaging app that facilitates anonymous calls and texts, faced a challenge similar to Nikil, Inc. and Down to Lunch. TextMe crafted the message, but the user decided who received it, whether or not to send it, and when to send it. The user could also avoid inviting friends at all. The court found in favor of TextMe, and this outcome helped future apps with TCPA compliance.
Is the “Invite Friends” Function a Safe Bet for Apps?
With every case presented, TCPA rules for SMS messaging become clearer, and fewer gray areas remain. Cases like Down to Lunch and TextMe are often dismissed, which is good news for app developers and anyone interested in SMS marketing.
Work with Tatango and a TCPA Attorney
Our number one recommendation to safeguard you and your company against litigation is to work with an attorney well versed in TCPA compliance for your region. TCPA attorneys will get involved in the early stages of development to help you assess the risk of marketing decisions and improve the overall user experience.
The law is becoming clearer, so it’s easier to recommend a proper course of action for text message marketing. But things can change, so there are few risk-free decisions when it comes to growth tactics. However, an attorney won’t discourage you from growth tactics; they’ll simply help you make the best decisions possible for your company.
In addition, our text message marketing platform offers tools to help you meet TCPA consent requirements to reduce your risk of litigation. Our team of experts is ready to help—contact us today to learn more.