A member of an online email marketing forum I participate in asked the question if opt in or opt out is the better subscription strategy for marketers to follow. I immediately turned to James Koons, our chief privacy officer and a highly regarded industry expert, and as usual, he gave me a very comprehensive answer that I thought it would be useful to share:

“The opt-in vs. opt-out debate has been raging for a long time – it can become a hot topic in both deliverability & privacy/compliance circles.  Generally, it seems that marketing folks have traditionally favored the latter “opt-out” strategy - an unchecked ‘opt-out’ box (by default) indicating that the users does not object to  receiving promotional communications.  The fact that someone has had the opportunity to object, which they decided not to take, really only means that they have not objected.  It does not mean that they have actually consented.  In our case (the case of our customers), the terms subscribe and unsubscribe are commonly used to indicate agreement or objection.

By itself, failing to register an objection will be unlikely to constitute valid consent.  However, in context, failing to indicate objection may be part of the mechanism whereby a person indicates consent.  For example, if you provide a clear and prominent message (see below), the fact that a suitably prominent opt-out box has not been checked may help establish that consent has been given.

Example:  “By submitting your email address, you indicate your consent to receive email marketing messages from us unless you have indicated an objection to receiving such messages by checking the above (opt-out) box.”

The precise mechanisms by which valid informed consent is obtained can vary.  The crucial consideration is that individuals must fully understand that they are in fact consenting and must also fully understand what they are consenting to.

Also – pre-checked boxes are bad!”

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