Hands up if you said "everyone does so it, so it
must be true". The use of pre-checked ticked boxes is so
prevalent these days that we can totally understand why anyone
would think it's the only way of getting consumers to agree to
being added to a mailing list.
It's well established that in order to comply with the Spam
Act, you must have consent from the individual herself if you want
to add her to your marketing database to send her information about
your products and services, offer her a discount on a future
purchase or tell her about an amazing competition you're
running. Everyone knows that there's no marketing without
What's not so well established, however, is how you
We suspect that, somewhere along the way, a lawyer proclaimed
that the only way to validly obtain consent is by way of an opt-in
mechanism. That is, unless your customers expressly opt in to your
mailing list (for example, by ticking a box next to words like
"I agree to receiving information about offers and
promotions"), you have to treat them as not consenting.
The problem, of course, is that no one ticks boxes and no one
opts in to receiving marketing material (except maybe people in
We reckon that a very cheeky marketing/UX guru somewhere came up
with the idea of pre-checking tick boxes to signify consent in
advance on behalf of its customers. After all, if someone
disagrees, he can simply untick the box himself. In reality, not
only are boxes rarely ticked, they are also rarely unticked, which
effectively equates to more names on the mailing list (#winning).
Actually, no. The truth is that pre-checked tick boxes are
The Australian Communications and Media Authority (ACMA), which
is responsible for regulating the Spam Act, has made it clear that
a pre-checked tick box is not effective consent. Before you say
"who cares, everyone else does it, we'll be fine",
have a look on ACMA's website and its enforcement activity in
the last year. It's not a toothless tiger.
Our advice – think outside the box. While it's clear
that the Spam Act requires consent before marketing, nowhere does
it say that opting in is the only way to achieve consent. In our
opinion, opting out works too. Want to know how? You'll have to
opt in for that one.
We do not disclaim anything about this article. We're
quite proud of it really.
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Businesses that rely on email or SMS for marketing purposes need to be aware of, and comply with, the Spam Act 2003.
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