Replace all opt-out boxes with opt-in boxes

Junk mailers get around data protection legislation by hiding opt-out boxes that can prevent your personal details are used for marketing. The solution is simple: opt-out boxes should be replaced with opt-inboxes.

I should perhaps clarify that there's nothing wrong with 'direct marketing' per se. Stop Junk Mail isn't about criticising people who buy things from catalogues or who ask specific companies to send them discount offers and/or marketing materials. What the campaign takes issue with is unsolicited advertising mail; the stuff you never asked for. Unless you ask a company to use your personal details for marketing purposes they should leave you alone.

Fairly and lawfully?

There's nothing outlandish or revolutionary about this view. In fact, it's reflected in the first principle of the Data Protection Act 1998; any person or organisation is legally obliged to process personal data fairly and lawfully. In the case of 'direct marketing' this means companies must be transparent about how they intend to use people's data and to only use the data in ways people would expect.

The Information Commissioner's Office recommends that marketeers avoid opt-out boxes. Here's what its marketing guidance has to say on the subject:

71 – An opt-out box is a box that user must tick to object or opt out of receiving marketing messages. However, the fact that someone has failed to object or opt out only means that they have not objected. It does not automatically mean that they have consented. [–] For this reason, we would always advise the use of opt-in boxes instead.

73 – Organisations should always ensure that the language used is clear, easy to understand, and not hidden away in a privacy policy or 'small print' […]. Avoid legal phrases and confusing double negatives. Make sure it is easy to tell whether a box is an opt-in or opt-out box, and use one consistent method. Use opt-in boxes wherever possible, but if using opt-out boxes […], make sure they are prominently placed and hard to miss.

If you've ever given your personal details to a potential junk mailer you know that this guidance is widely ignored. Opt-in boxes are rare and opt-out boxes are routinely hidden in the small print.

Replacing opt-out boxes

Ideally, the Data Protection Act should be as clear as the Information Commissioner's guidance on how the Act should be interpreted. This might actually happen. There's a new General Data Protection Regulation slowly making its way through the European Parliament and it's expected that it will ban this practice. Another way to clarify the law and force the industry to respect the letter and spirit of the Data Protection Act would be to have a test case in the courts. Finding a junk mailer that tricks people into opting in is easy enough… finding someone willing to challenge this practice is the difficult part. Do get in touch if this is something you're interested in.

Last updated: 
24th July 2015