Brownson Norby, PLLC attorney Aaron M. Simon delivered a presentation titled, The Test Messaging Revolution, at a March 31, 2016 event of the North Central Chapter of the Professional Liability Underwriting Society (PLUS). PLUS is a primary source of professional liability educational programs and seminars, networking events, educational products, and information regarding professional liability. PLUS has over 7,000 members, representing over 1,000 companies. Aaron is a Steering Committee Member for the North Central Chapter of PLUS.
Aaron's presentation described how in today’s day and age there are numerous ways you can communicate with people, including your customers, clients, and business associates. This includes phone calls, letters, text messaging, Facebook messenger, skype, LinkedIn, and so on. The everyday use of what was once known as “non-traditional” forms of communication, particularly text messages, has exponentially increased over the past few years.
As an attorney, I regularly have clients text message me, and message me on Facebook and LinkedIn. My clients are regularly using this communication format to contact me. Even my 73 year old father regularly uses text messages to communicate with me, and expects me to promptly respond to him!
Some research has shown that “sending and receiving text messages is the most prevalent form of communication for Americans younger than 50”; and “[m]ore than two-thirds of 18- to 29-year-olds say they sent and received text messages ‘a lot’ the previous day, as did nearly half of Americans between 30 and 49.” In addition, some studies have shown that more than 90 percent of people read a text message within the first three minutes of receiving it.
While some may not like the predominance of texting, it cannot be ignored. There are no per se legal prohibitions against the use of text messaging, or similar messaging in the business context. But, there are both positives and negatives to text messaging. Some of the biggest positives are that text messaging is simple and easy; text messaging documents your communications; and the cost of text messaging is very low. Some of the biggest negatives are the potential for misunderstandings and misinformation, and the impression of informality and un-importance.
- Positives of Text Messaging
First, as a marketing tool, allowing your customers to reach you via text messaging, should you choose to do so, gives them access to you 24/7. This could be a big selling point for you, particularly with the Millennial Generation (born between 1980-1999), an 80 million-plus group of customers. Millennials are always near their phones, and their next text message, with 80% sleeping with their cell phones next to their beds.
Text messaging is also a way for you to successfully reach your customers, with instant confirmation that a text has been sent, and statistics showing that it will likely be read. For example, some studies show that “Brands using SMS [text messaging] successfully reach 95 percent of smartphone and non-smartphone users.” Text messaging is, likewise, generally a reliable and a universal way of communicating with customers and others not just in the United States but throughout the world. Texting internationally is generally the same as a making a cell phone call; you just need the country calling code and number to send an international text message.
Further, text messaging is instant and to the point. Texting forces you to be succinct, which is important to customers. To quote Mark Twain, “I didn’t have time to write a short letter, so I wrote a long one instead.” Thus, if you have a tendency to go on and on to make a point, text messaging forces you to be brief, and succinctly convey your message.
Additionally, you don’t have to “break the bank” to use text messaging technology in your business. Software can allow you to sync your phone to your desktop computer and allow you to send text messages directly from your desk. You can also store, download, characterize, and sort your text messages using various applications on your smart phone, most of which are free or at a very low cost.
- Negatives of Text Messaging
So with all of these positives to text messaging, are there any negatives? The answer is obviously yes, and the overall lesson is: be aware and be careful when communicating via text messaging.
First, text messaging, Twitter, chatting and IM abbreviations, while common, may be confusing. In normal, everyday life, a “TTFN” would be totally appropriate, but when communicating with an insurance customer, such abbreviations are too informal. Certainly, the use of “THX” would be acceptable, but use caution. While you might be up-to-date on the latest lingo, your customer might not know what “BTW,” “RBTL,” “2moro,” or “IMHO” mean. Similarly, if you receive a text message with such abbreviations, make sure you are clear on the meaning. A simple message back with a confirmation should suffice.
Likewise, context is very hard to convey in a text message, such that sometimes the benefit of conciseness is outweighed by the need to put the information you are conveying, or receiving, into context.
Errors in spelling and content are also more prevalent in text messages as opposed to emails and traditional letters. Auto-correct can also entirely change the meaning of the message sent or received. Try to always proofread before hitting “send.”
Finally, some people are just not yet comfortable sending and receiving text messages. In those instances, traditional communications are best.
- Legal Implications of Text Messaging
While text messaging has taken over as the dominant form of communication, there is little case law or legal authority that discusses text messaging in the business context. Currently, there is no per se legal prohibition on the use of text messaging, or other forms of instant messaging, in communications with in the business context. In fact, courts have recognized text messaging as a valid and predominant form of communication.
However, text communications do have potential legal implications. The most obvious issue is making sure you receive and acknowledge communications that you receive via text message from your business contacts.
Another potential legal implication of text messaging is sending a text message to the wrong person. There is likely limited liability exposure here, but there certainly is a chance to upset and offend your business contact.
Another legal issue that arises with using text messaging in business is sending sensitive information (such as driver’s license numbers, social security numbers, bank information, etc…). First, it is highly recommended that you do not send sensitive information via text message. However, if you or your business contacts are sending sensitive information via text message, then make sure at minimum you are always locking your phone when not in use; and you should encrypt the data on your phone.
One should also take care if you are sending mass marketing via text messaging. There are federal and state regulations that exist that apply to this and that should be carefully followed. 
Like it or not, text messaging (and other forms of non-traditional communication) are here to stay. Be aware of this and embrace these forms of communication while at the same time taking care to still communicate appropriately. Even though text messaging is less formal than other forms of communication, carefully composing and sending text messages is important. Typically only communicate via text or instant message with business contacts who have specifically agreed to this form of communication. In addition, a best practice is to ask your business contacts what form of communication they prefer.
As always from a liability standpoint, documentation is key. Set standards and follow them: all “conversations” with a business contact - whether by text message, email, phone or in person - should be documented and preserved. You should also obtain written acknowledgement from your business contacts regarding all decisions and transactions. Unfortunately, it is sometimes not enough to have one-sided documentation. It is also recommended that if you regularly communicate with a business contact via text messaging that you send that customer a written statement regarding your policies and limitations regarding your organization's text message communications.
A best practice is to develop policies and procedures for your organization's communications with customers and others by text messaging or other forms of instant messaging. Make sure these procedures are understood by all and carefully followed.
Communication continues to evolve with technology and social media. This evolution can provide an opportunity to connect in a new way with your business contacts, particularly as the Millennial Generation takes over the marketplace. For every communication, there’s an appropriate form of messaging, including text messaging. The bottom line is that this form of communication, used with proper safeguards, can be very advantageous to an organization's business on multiple levels.
 http://venturebeat.com/2015/03/27/why-businesses-cant-ignore-sms-hint-90-of-people-read-a-text-message-within-the-first-3-minutes/; See also: http://www.fastcompany.com/3010237/bottom-line/texting-is-the-new-email-does-your-company-do-it-right/
 Most smart phones have a setting that allows you to encrypt all of the data on your phone.
 The Telephone Consumer Protection Act (TCPA) and the CAN-SPAM Act set forth the requirements for commercial messages and marketing. More information on both laws can be found at https://www.ftc.gov
 Text messages should be immediately forwarded to your business email address and entered into your agency management system. It is important for everyone in your agency to learn how their specific phone works for text message forwarding and understand the characteristics of their devices, as they frequently differ from device to device.