Ruth Mortimer on opt-in clauses
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Iain Tait from the digital agency Poke raised an interesting point on his blog after discovering Starbucks forces customers using its Wi-Fi facility to “accept the terms and conditions and agree to receive email marketing from BT Group companies”.
Tait asks is it allowed for companies to offer you no choice but to receive marketing if you choose to use the service? Or do they have to offer you an opt-out?
A useful guide on the website of lawyer Pinsent Masons says “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, and 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’.”
This seems to suggest that companies should at least offer the chance to opt out in a “clear prominent” way. Regardless of legalities, offering an opt-out at the very least (in best cases, an opt-in) is what every good brand should do. It informs the consumer that you take their right to privacy seriously and can only be a good foundation for future relationships.
Readers' comments (1)
Struan Robertson | Wed, 20 Jan 2010 1:07 pm
I thought I could help to clarify this. (I'm the editor of Out-law.com, the website of Pinsent Masons that Ruth quotes from, and a lawyer with the firm.)
From what Alain says, BT's approach sounds fine. There's nothing illegal about making the collection of marketing details a condition of accessing Wifi services.
When a company like BT then sends a marketing email to that person, it just needs to give them a means to opt-out from future communications.
That is not to say that legality is the only factor here: as Ruth suggests, any company has to think about brand perception when it makes unwanted email marketing a condition of getting a wanted service. Often they'll present the email marketing as an optional extra (because those that check that extra box are likely to be warmer targets than those that are merely prepared to tolerate some future marketing to get immediate wifi).
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