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Over the weekend, I was booking airline tickets from a certain carrier that will remain unnamed. Just when I thought I was getting an awesome deal, I noticed in the periphery that the price had shot up… However, by that point I’d already hit the ‘Purchase’ button and was well on the way to having my credit card docked. A few moments later, I received an additional email on top of my tickets – it turned out that I had ‘accidentally’ signed up for insurance, too.

Up there on the annoyance scale with unsubscribe links that don’t work are check-boxes that are already checked for you. In this case, some clever sales hack decided that all customers should get signed up to a policy by default… But is this really different from assuming that everyone wants to get signed up to an email newsletter?

Many may say, ‘Oh, but famous retailer X does it!’ and sadly, they may be accurate. However, there are two simple reasons why us folks at Campaign Monitor don’t accept lists that have been collected in this manner, being:

  • It’s not right to send email without prior consent – Email recipients don’t like it and it’s against the law in places like Canada and Australia, so we’ve worked an opt-in requirement into our terms of use to keep our customers on the right side of the tracks. As a result, everyone enjoys high delivery and low spam complaint rates.
  • It makes you a nice guy or gal – Choice is a wonderful thing. I can be a friend to someone and love their personality, dress, or Minecraft addiction. However, I may choose to not take an interest in their LinkedIn, their dog park group or what they’re having for dinner. But say I started getting ‘accidentally’ signed up to updates about dog parks (even though I’m not interested), then things will get a little awkward. Same applies to email – sending without consent is just bad manners.

So, word to all the designers out there with keen clients on the list-building front. Sometimes permission can be a difficult topic to get get started on, but when it comes to ‘affirmative consent’, having your opt-in check-boxes unticked isn’t just about choice, its the law. On a positive note, here’s an example of a newsletter opt-in checkbox that’s doing the right thing:

An unchecked signup checkbox

Finally, we’d love to hear about how you’ve discussed issues surrounding permission (and sign up forms in particular) with your clients. If you’ve had a curious experience, a pushy corporate client or simply a funny quip, please let us know about it in the comments below.

PS: I still haven’t been refunded for the insurance policy yet.

  • Ben Carlson

    How do so many big-name sites get away with it if it’s illegal? Or is it “interpretively illegal” but not “actually illegal”?

  • Ros Hodgekiss

    For one thing, it’s pretty hard to crack down on, Ben. Although it’s written down ‘as law’, it’s a) largely tolerated, and b) only becomes ‘actually illegal’ when folks start prosecuting for it. But as it stands, it’s a written guideline for emailers like you and I and ultimately, an expression that folks as a whole don’t like receiving email without giving their consent first. And yes, companies do get nabbed for sending unsolicited email (ie. effect, not cause).

  • George Haritonidis

    Great article Ros. I was a little surprised to see that you mentioned that the practice of a ‘default opt-in’ was illegal in Australia – I was aware in the Spam Act 2003 that methods of unsubscribing was required in a newsletter to be lawful, but this is news to me.

    Would you happen to know where this is written in the Spam Act? I’ve just had another look at it now and it specifies more information about how commercial entities should conduct themselves when communicating via email newsletter, rules on how unsubscribe facilities should work, detail about address harvesting and injuctions / legal repercussions if the Act is breached.

  • eric g.

    should include negative opt outs too, i.e. “don’t send me newsletters..”

  • Mathew Patterson

    Excellent point Eric – tricking people into subscribing through your wording is hardly a great way to start a relationship.

  • Søren Sprogø

    We have similar law in Denmark, it is close to illegal to have the box ticked by default. There are some rare case loopholes though. Plus we have a pretty aggressive consumer “Ombudsmand”, so if you get caught doing it you risk a hefty fine plus a ban on sending to your list again (because it has been obtained illegally).

    However those rare cases that can circumvent the law, report of massive growth in their email base compared to those who doesn’t have the box ticked by default. I agree, it’s not the best way to start a relationship. But as a marketeer you have to evaluate how many you potentially piss off vs. those extra orders you’ll get from having more subscribers. And remember, the people you piss off probably wouldn’t have bought from you anyways.

    It’s a fine balance. I always advice my customers not to have the box ticked by default. But then again, I can’t advice my customers to do something that may be potentially illegal. That would give me a whole world of trouble.

  • Stephen Wood

    I don’t think anyone would disagree that “It’s not right to send email without prior consent” but that’s a different issue to whether the permission checkbox is enabled or disabled by default. It seems like you’re mashing together two quite different things.

    No question about it, sending the customer email when they have unchecked the box is clearly wrong but that doesn’t seem to be what we’re talking about here. If I go to a site and see that permission checkboxes are enabled by default (and I don’t want to receive information) I simply uncheck them. Assuming the checkboxes actually do what the company says they do then where’s the problem? I can certainly understand that the sign up rate is likely to be higher if the checkbox is enabled by default.

  • Mathew Patterson


    We agree it is much worse to add people without any chance to uncheck the box, but making the box checked is adding people unless they take a deliberate action.

    It relies on them noticing the check box and understanding the way it is written, and then unchecking it. By having it pre-checked, you end up with more subscribers, but at least some of them will be people who did not mean to be on there.

    Having a pre-checked box is better than not having a way to avoid emails at all, but worse than just letting people choose to join your list and not emailing them if they don’t explicitly do so.

  • Molte

    What about simply using two different submit buttons depending on the users subscription choice rather than a checkbox? They could say something like, “Confirm order and subscribe to our email newsletter” and “Confirm order, but don’t subscribe to newsletter”, respectively. That would force the user to take action they wouldn’t miss the checkbox.

  • Jarrod Taylor

    @Molte – That approach would work fine also. Because the user is required to choose one option or the other, it removes the possibility of them unwittingly being added to a newsletter list if they did not see this option when completing a form.

  • johnM

    That makes sense that it is not better, but is it illegal to have it pre-checked?
    I have looked for this in the Can-Spam Act of 2003 (US) and did not find anything that says very clearly that this is illegal.

    FYI, i am against the default pre-checked, and always believed it to be illegal…but was recently challenged on this topic. After researching it i could not find clearly stated in the Can-Spam act.

    Any help would be appreciated.

  • Ros Hodgekiss

    Hi John, sorry for the late response. According to the CAN-SPAM Act, sending an email without the recipient’s consent is not illegal, however not honouring opt-outs/unsubscribes is. That said, most of us would agree that sending emails without clear permission isn’t a great idea when it comes to maintaining a clean sender reputation… Not to mention, it is illegal in countries like Canada and Australia.

    So, there isn’t a provision about whether forms should have a pre-checked box or not (as the CAN-SPAM Act doesn’t force folks to obtain permission), but in order to stay in the good books of ISPs and the law outside of the US, most serious email senders ask for consent to be shown by leaving the opt-in box unchecked on forms.

  • johnM

    Thanks Ros. That makes a lot of sense. Perhaps the Australia & Canada mention will help my cause.

    Thanks again.

This blog provides general information and discussion about email marketing and related subjects. The content provided in this blog ("Content”), should not be construed as and is not intended to constitute financial, legal or tax advice. You should seek the advice of professionals prior to acting upon any information contained in the Content. All Content is provided strictly “as is” and we make no warranty or representation of any kind regarding the Content.
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