Campaigns often assume that hiring a texting vendor moves the legal risk onto the vendor. It doesn't, at least not reliably. Under the TCPA, a campaign can be held liable for violations committed on its behalf, a doctrine called vicarious liability, so "our vendor did it" is a weak defense. Understanding this is how a campaign avoids being on the hook for someone else's mistake.
What is vicarious liability?
Vicarious liability is the principle that a party can be held responsible for the acts of another performed on its behalf. In the TCPA context, courts have found that a company can be liable for calls or texts made by a vendor or agent working for it, under agency principles. So if a campaign hires a firm to run its texting and that firm violates the TCPA, the campaign itself can face liability for the violation, not just the vendor. The campaign benefited from the messaging, and the law can hold it responsible for how the messaging was done.
Why isn't "the vendor did it" a reliable defense?
Because the campaign directed and benefited from the outreach, which is exactly what triggers vicarious liability. A plaintiff suing over unlawful texts sent for your campaign will name the campaign, and the fact that a vendor pressed the button doesn't automatically shield you, especially where the campaign controlled or ratified the conduct. This is why cutting corners through a cheap vendor can be a false economy: the campaign inherits the risk of the vendor's practices, so a vendor that buys lists or mishandles opt-outs can create liability that lands on the campaign.
How do campaigns protect themselves?
Choose vendors carefully and stay involved in compliance:
- Vet the vendor's practices. Use vendors that capture real consent, honor opt-outs, register properly, and keep records, because their practices become your risk.
- Contract for compliance. Address compliance responsibilities and indemnification in your agreement, though a contract doesn't erase liability to third parties.
- Don't direct unlawful conduct. Don't ask a vendor to text a purchased list or skip opt-outs, directing the violation is the surest way to own it.
- Keep your own records. Documentation of good-faith compliance protects the campaign regardless of the vendor.
Frequently asked questions
Can a campaign be liable for its texting vendor's TCPA violations?
Yes, potentially, under vicarious liability. Courts have held parties responsible for texts made on their behalf by vendors or agents, so a campaign can face liability for its vendor's violations, not just the vendor.
Is "the vendor did it" a defense to a TCPA claim?
Not a reliable one. The campaign directed and benefited from the outreach, which can trigger vicarious liability, especially where it controlled or ratified the conduct. Plaintiffs will name the campaign.
How do campaigns protect against vendor liability?
Vet vendors' compliance practices, address compliance and indemnification in the contract, never direct unlawful conduct like texting a purchased list, and keep your own records of good-faith compliance.
Keep reading: TCPA lawsuits against campaigns and do campaigns need consent to text voters?. For the rules, see the FCC.
This is general information, not legal advice, current as of the date above; consult counsel.