Email marketing opt-in or opt-out? – the law and best practice
This question came up around a client’s competition form. The client wanted to use the ‘opt-out’ method, requiring the user to uncheck a box in order for them to opt-out of receiving any further related emails (read: spam). The alternative would be to use an ‘opt-in’, where the user must deliberately opt-in to receiving emails.
The opt-out method is obviously bad for the user, as they run the risk of skimming the form, not properly seeing that the box is checked or misunderstanding what it being checked means, and then receiving spam. It seems sneaky, but is it legal? I shall attempt to explain…
This is a very grey area, and the actual law will vary by territory. In this country there seem to be various laws that apply, but none specifically state that you can’t use opt-in. According to this UK site about website laws, according to the UK’s Data Protection Act of 1998, using opt-out is sufficient for general marketing purposes. Where sharing personal details are involved, such as ethnicity or income, then it seems that an opt-in is required.
However, the website also cites the more recent Privacy and Electronic Communications (EC Directive) Regulations 2003, which are more vague on the matter! It states that “the recipient of the electronic mail has previously notified the sender that he consents for the time being to such communication being sent”. This implies that the user must have consented to receiving mail, and if a box is checked by default then does this mean that the user has given their consent? Probably not.
So, at the end of the day it seems clients are perfectly entitled to use the opt-out method if they want to, for general marketing emails - there are no clear laws on the matter. If it ever went to court though, this could go against the EC Privacy Directive, depending on how the court interpreted the quote above!! Best practice would always be that the user should have to opt-in to receive further communications.