Service text or marketing text? 12 borderline cases

Whether a text counts as marketing decides everything else about it. Regulation 22 of PECR, the Privacy and Electronic Communications Regulations, bans unsolicited texts "for the purposes of direct marketing" to individuals without consent or the soft opt-in, and leaves service texts alone. The definition both PECR and the Data Protection Act 2018 now use is "the communication (by whatever means) of advertising or marketing material which is directed to particular individuals", and the ICO's guidance adds the rule that settles most arguments: "If your service message has elements that are direct marketing, even if that is not the main purpose of your message, then it will count as direct marketing."

Our guide to SMS marketing rules covers the basic split. This post is about the cases in between: renewal reminders, loyalty balances, "we've missed you", new opening hours. The ICO has fined at least four well-known companies over messages that were presented as service messages, and its reasoning in those notices is the best guide to where the line falls.

The test the ICO applies

The definition has been in section 122(5) of the Data Protection Act 2018 since that Act, and on 20 August 2025 the Data (Use and Access) Act 2025 copied it into regulation 2 of PECR. The ICO reads "advertising or marketing material" widely. It covers "commercial marketing of products and services" and "promotion of aims and ideals such as fundraising", which is why a charity's appeal is marketing too.

On the other side sit service messages, "messages that aren't promotional but are for administrative or customer services purposes". The ICO's examples are messages to "remind people how to contact you in case of a problem", "check their contact details are correct", "confirm or remind them about appointments" and "update them on your terms or conditions". Logos and branding don't change that: "if your service message contains general branding or logos, this doesn't count as direct marketing."

For anything in between, the guidance suggests three questions. Why are you using the information? Why are you contacting the person, and in particular "are you trying to influence their behaviour?" And is the content promotional? It adds that a message that "actively promotes or encourages people to make use of a particular service, special offer, or upgrade" is likely to be direct marketing, and that tone matters but can't rescue promotional content. Its example of a neutral sentence that is still marketing: a supermarket telling a customer "Your local supermarket stocks leading brands".

There's no "main purpose" escape route. The ICO's notice against Halfords quotes the Upper Tribunal in a 2021 case brought by Leave.EU, which agreed there is "no merit in the notion that some form of primary purpose test should be read into" regulation 22.

Four service messages that turned out to be marketing

EE is the text case. Between 17 February and 25 March 2018 it sent 16,620,416 "Get Active" messages to customers. One read: "You'll soon be able to switch up your routine by upgrading your Apple iPhone 6s. You can countdown the days to your upgrade with the My EE app." EE told the ICO "they felt this constituted a service message". The ICO disagreed, partly because the app "also offers customers the option to purchase new products, add data to their account and 'countdown the days' until their upgrade", and partly because of the follow-up: "The fact that EE Limited sent a second message to those who did not engage with the app, following receipt of the first message, further supports the Commissioner's finding that these were marketing messages."

The other three are emails, but the reasoning carries straight over to texts. American Express had an internal policy sorting messages into marketing and servicing, and the ICO found its servicing emails "sought to encourage the customer to make purchases on their AMEX card". Virgin Media's email told customers their price wasn't going up, a classic service message, then added a paragraph about "all the great Virgin Media stuff we have on offer for you" and how to opt back in. Halfords put "This is a service message and does not affect your marketing opt-in status" in its email; the ICO found the email "steers recipients towards its website" and fined it anyway.

Three lessons come out of the four. Your own label doesn't decide it, and neither does a disclaimer. One promotional paragraph turns the whole message into marketing. And chasing people who didn't respond is itself evidence that you were trying to influence what they did.

Twelve borderline texts

Each example below is hypothetical and the verdicts are our reading of the ICO's guidance and notices. Where the ICO has given a near-identical example, we say so.

Texts 1 and 2 follow the ICO's own gym example, in which a call about a failed payment is not marketing until the gym "also outlines its personal training services". Texts 3 and 4 are almost word for word the ICO's mobile phone example: a data limit warning that is "purely informative and neutral in tone" is likely a service message, and the version with "a special data offer just for you" is direct marketing. Text 12 is the gym call again, by text.

Renewals (5 and 6) are where businesses most want the answer to be "service". The ICO lists "automatic renewal notices that are worded neutrally and don't encourage customers to renew" among messages that may not be marketing, and its regulatory communications guidance says the same of "factually presenting people with their options once a fixed term contract with you ends". The EE notice draws the other edge: a message with "significant promotional material aimed at customers to buy extra products or services or to renew contracts that are coming to an end" crosses into marketing. So price, date and options keep a renewal text on the service side, and urgency or a nudge to renew moves it across.

"We've missed you" (7) has no offer in it, but its only purpose is to bring someone back, which is "trying to influence their behaviour" in the ICO's words. One category of American Express emails, which the notice calls "come back to" emails, "encouraged customers to make purchases" on cards they hadn't used for a while, and the ICO counted every one as marketing.

Loyalty balances (8) are closer. The ICO's guidance says "factual information reminding customers of a benefit on their account but not encouraging them to use the benefit" may not be direct marketing. A bare balance fits that. "You've got 340 points, spend them this weekend" doesn't, and American Express was caught by emails that encouraged spending "by highlighting the rewards and benefits resulting from such purchases".

Opening hours (9) aren't in the ICO's examples, so this one is purely our view. Telling customers with bookings that their usual day has changed is administration. Texting your whole list that you're now open on Sundays is announcing more chances to buy, closer to the supermarket's "stocks leading brands" than to an appointment reminder, so we'd treat it as marketing and send it only to people who have agreed.

The feedback request (10) relies on the ICO's line that "Contacting people to conduct genuine market research is not direct marketing", unless the messages "include promotional material". Add a discount for a review and it's marketing, and the consumer law on reviews applies on top (our post on review request texts and the DMCC Act covers that).

Text 11 has no offer in it either. The ICO's example is a hotel emailing past guests to ask whether they'd like its offers: "Whilst this email doesn't contain any of these discounts or offers, the hotel is still sending it for direct marketing purposes." And if the person has already opted out, you can't ask at all; the ICO says "you can't contact them at a later date to ask if they've changed their mind", which is what Virgin Media did.

If it's marketing, send it as marketing

Nothing here stops you sending the promotional version. It just has to go to the right people in the right way. Regulation 22 requires consent, or the soft opt-in for your own customers' similar products, where you collected the number "in the course of the sale or negotiations for the sale" and gave "a simple means of refusing" then and in every message since. Regulation 23 bans marketing where the sender's identity "has been disguised or concealed" or no valid address for opting out has been given. The ICO's round-up of text marketing fines shows what happens when those go missing.

The practical habit is to keep service texts pure and send marketing separately, to the subset who agreed. A reminder that stays a reminder can go to every customer with a booking; the offer goes in its own text with an opt-out line, to the people on your marketing list.

CaptiFi Connect handles STOP and the other opt-out words automatically on every text, so a customer who opts out of your offers is blocked from later campaigns without anyone updating a spreadsheet; the opt-outs page explains how. Deciding which side of the line a text falls on stays with you, and the ICO's three questions are the place to start.