Smosh Sent Text Message Ads to Minors Without Statutory Consent, Class Action Says

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A proposed class action filed in late October claims Smosh Dot Com, Inc. has sent automated telemarketing texts to consumers who never consented to be contacted or whose numbers were listed on the National Do Not Call Registry.

The lawsuit alleges Smosh, an online sketch comedy group that makes videos for YouTube and sells merchandise geared toward teenagers, has knowingly sent telemarketing texts to minors who the suit says are not old enough to legally provide prior express consent to receive the messages, as required by the Telephone Consumer Protection Act (TCPA).

Although the TCPA requires companies to obtain consumers’ prior express consent before sending automated telemarketing calls or texts to their cell phones, minors are unable to lawfully provide such consent or enter into any type of business relationship, even if they agree to receive the texts from Smosh, the lawsuit claims.

The plaintiff in the case is the mother of a minor who Smosh claims agreed to receive text message advertisements from the company to his mother’s phone number. According to the lawsuit, the personal data Smosh obtained about the plaintiff’s son indicated that he was 13 years old at the time he supposedly consented to receive text messages advertising the company’s merchandise.

The case claims Smosh sent at least five text messages, in which the company advertised various sales and promotions for its products, to the plaintiff’s cell phone number between December 2019 and June 2020. According to the complaint, the texts were “generic, pre-scripted and clearly sent out as part of an automated text message ‘blast.’”

The plaintiff says she found the messages to be “irritating, exploitative and invasive,” and claims the texts were “precisely the type of communications she sought to avoid” when she registered her cell phone number on the National Do Not Call Registry in November 2019.

According to the suit, Smosh’s counsel attempted to demonstrate to the plaintiff that the company had obtained consent to send the text advertisements by providing data reflecting that someone had opted into receiving automated messages with the plaintiff’s phone number on November 3, 2019. The lawsuit argues, however, that the data provided by Smosh reveals that the party who supposedly opted in was 15 years old as of September 8, 2021, and born in 2006.

The lawsuit alleges Smosh lacks policies to ensure it has valid consent from a person of majority age before sending telemarketing text messages and that the cell phone numbers to which it sends the texts are not registered on the National Do Not Call Registry.

Moreover, the lawsuit claims Smosh unlawfully placed calls or texts to Texas residents, including the plaintiff, without being registered as a telephone solicitor with the Texas Secretary of State.

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