Since the introduction of the Privacy and Electronic Communications Act in 2003, there has been a lot of confusion over the legality, or otherwise, of ambient Bluecasting, where a Bluetooth transmitter sends out a message that will arrive on any phone within range with Bluetooth switched on. Some argue that it is against the law, since the initial message is unsolicited, while others argue that if you have Bluetooth switched on, you leave yourself open to this type of message.
But Saul Kato, CEO of mobile content distribution company Qwikker has insisted that the practice is perfectly legal, owing to a crucial difference between the nature of an SMS or email, and a Bluetooth opt-in message, in terms of its storage on the device on which it is received. Speaking exclusively to Mobile Marketing, Kato said:
Ambient Bluecasting without a visible call to action or context is annoying, but it is not illegal. We have scrutinised it, and we do not believe it violates any aspect of the law. There has been some misunderstanding about the way that a Bluetooth message is delivered. An unsolicited message sent to your phone is not stored on your phone in the way an email is on your PC. The Spam regulations involve data that is stored on the phone, but there is no way to get an unsolicited message, or any other data, stored on your phone, without the users permission.
“In fact, you could argue that the initial message is generated by the phone. The transmitter says: I am here and  its the phone that says: Do you want to accept this? But at this point, no data has been stored on the phone. Its only when you say Yes that you get something in your inbox. So the legality is airtight. Is in intrusive or not? Thats a different question, and I think ambient Bluecasting would be intrusive.
Although Qwikker has run a small number of campaigns in bus shelters in the US, the majority of its work is carried out in environments such as a rock concert, where there is a captive audience, likely to be interested in the branded content it offers on its clients behalf. 
Katos take on the regulations is certainly an interesting one which we have not heard advanced before. Wed love to know what other people make of it. Comments anyone?

Eds note: This is a slightly revised version of the original story, after Qwikker contacted us to point out that the crucial difference in terms of storage on the device is not between SMS and email, but between SMS or email, both of which are stored on the device to which they are sent, and a Bluetooth message, which the user has to proactively choose to  store on the device. We are happy to make the clarification.

Bluecasting – The Next Marketing Faux-pas? Read.