Email marketing – when to use opt-in and when to use
opt-out
This guide is based on UK law. It was last updated in March
2008.
Introduction
Most companies now use some form of direct marketing to find new
customers, and to keep in touch with existing customers. The advent
of email revolutionised the direct marketing industry, making the
process cheaper, more wide-reaching and in some circumstances more
effective. Unfortunately all of the advantages of email marketing
are also exploited by spammers.
As a result we have witnessed an increasing volume of spam,
which frustrates recipients and devalues the power of email
marketing. To help control the increased use of email for direct
marketing, and in part to deal with the risk of spam the EU issued
in 2002 a directive on privacy and electronic communications.
The directive was brought into force in the UK by the Privacy
and Electronic Communications ( EC Directive) Regulations 2003. The
regulations apply to all organisations that send out marketing by
telephone, fax, automated calling system, email, SMS , MMS or using
any other form of electronic communication.
Despite the regulations having been in force since
December 2003, there is still a great deal of confusion over what
organisations must do to comply, relating in particular to the use
of opt-in and opt-out when collecting marketing details. This part
of the paper sets out some basic rules which companies should
follow to help comply with their legal obligations.
Individual and corporate subscribers
The regulations make a distinction between individual
subscribers (e.g. john.smith@hotmail.com) and
corporate subscribers (e.g. john.smith@company-name.com).
This paper will concentrate on individual subscribers, as it is
here that the Regulations have the most significant impact.
Save for some notable exceptions relating to existing customers,
the Regulations provide that organisations cannot send unsolicited
marketing communications by email to individual subscribers unless
the recipient has given his prior consent.
Prior consent
Understanding the meaning of "prior consent" is the key to
understanding what procedures are necessary when collecting
personal data in order to be able to send email marketing.
Consent by definition requires some sort of positive action on
behalf of the recipient. However, it is a widely held misconception
in data protection terms that consent requires that the user
"opts-in" to their data being used. Prior consent does not mean the
same thing as "opt-in".
An "opt-in" generally refers to a tick box which, if filled in
by the user, indicates positively that they would like to be
contacted by a particular form of communication. Unless the user
ticks the box then the organisation cannot use their details for
the form of marketing listed. This is in contrast with an
"opt-out", where the default position is that the user will be
contacted by that form of marketing, unless they tick the box to
indicate that they would prefer not to be. The benefits of opt-out
over opt-in are clear – where the default position presumes the
right to market, and requires no further action by the recipient,
average collection rates are considerably higher, meaning more
emails can be sent to more people.
"Prior consent", however, does not specify any particular means
of assessing the user's intention. The main thing to consider is
whether the user fully appreciates that they are consenting and
what they are consenting to. Therefore, while opt-in is one way of
demonstrating a user's consent, it is not the only way.
Another equally acceptable practice would be to collect the
customer's details, at the same time presenting them with a data
protection notice which is drafted to state that by providing their
details the user consents to the receipt of unsolicited marketing
emails. Key to this is the way in which the consent statement is
drafted. It must be a positive statement, the effect of which is to
be considered as positive consent by the user.
At the same time the user must be provided with an opportunity
to opt-out of their details being used for this method. The best
way of achieving this is to include an opt-out tick box as a part
of the data protection notice. Failing to opt-out alone is unlikely
to constitute valid consent, however, in context, it can indicate
that consent has been given if a clear prominent message is
provided, in the data protection notice or otherwise, such as, 'By
submitting your details, you are indicating your consent to
receiving marketing emails from us, unless you have ticked the box
below to indicate your objection to receiving these messages'.
Points to remember
Confusion still reigns about the use of opt-in and opt-out for
email marketing purposes. The confusion centres around a
misunderstanding of what is required to fulfil the obligation to
obtain a user's "prior consent".
Prior consent
Prior consent is not the same as opt-in, and it is possible to
use a properly drafted consent statement in the data protection
notice along with an opt-out box, and still comply with the Privacy
and Electronic Communications Regulations.
Identify data
Include a short statement at the point at which the user submits
their email or telephone address to the effect that these may be
used for marketing communications unless the user expressly
requests that they are not.
Consent statement
Make sure that the data protection notice is properly drafted,
and includes a statement to the effect that by providing email and
telephone numbers the user consents to their being marketed to by
these methods. The drafting of this is very important, as it must
be written in such a way as to be considered active consent of the
user. It should be provided before the point at which the user clicks
to proceed with the registration/transaction (for example before
the "submit" button).
Opt-out
Following this, include an opt-out box, which allows the user to
select to opt-out of email marketing communications.
Unsubscribe opportunities
Ensure that all marketing emails provide an easy and free means
by which the user can opt-out of future marketing, and make sure
that if they use this opt-out their request is adhered to in all
future marketing.
Contacts
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