Opt In And Out Keys Shows Decision To SubscribeSusan King Cope, the director of development at  Carolina Tiger Rescue recently sent me this question:

Right now, we provide tours and folks provide their contact info when they check in.  We are currently using an “opt out” function.

  • (check here) I do not want to receive mailings
  • (check here) I do not want to receive emails

But we wonder if this is the best way to collect interested prospects.  And are we following best practices and/or legal compliance rules? Any info would be greatly appreciated.

Before we get into the different ways to approach this, it’s important to know the basic differences between US and Canadian law. Canadian spam laws require an explicit opt-in, where you use a separate check box for the email opt-in, and the check boxes can’t be pre-checked. Here in the US, our spam laws aren’t that detailed about how the forms are constructed.

So to answer this question, let’s look at a few scenarios. It’s my understanding that all of these are technically legal in the US (“I am not an attorney” disclaimer!); however, they do have different levels of user permission from least permission (worst) to most permission (best). Note that only the last option, #4, is legal in Canada, so if you want to be on the safe side, go with #4.

1. IMPLICIT OPT-IN WITHOUT CHECK BOXES.  Supporters are Opted-In According to Site Terms of Service. In this case, you would typically include opt-in language somewhere in the Terms and Conditions on your website that says the equivalent of “if you donate or register, you are opting in to receive marketing email.” We also see the equivalent in “member benefits” language that appears in fine print below donation forms on some charity websites.

But this doesn’t give supporters the option to actually say yes or no during the transaction. This is definitely not a best practice.

But the practical reality for nonprofits is that it may make sense to email those people. Think to yourself: Is ongoing communications with us a desired and reasonable expectation of this transaction? For example, if I register for an event, it’s reasonable to assume that I want you to send me information about that event. But what about future events? If someone makes a donation, and you have a donor newsletter, I think you could rationalize sending that newsletter. But what about additional appeals on other programs? This approach is not advisable, even if you can rationalize it.

2. PASSIVE, IMPLICIT OPT-IN with UNCHECKED OPT-OUT BOXES.  Supporters are Opted-In Unless They Check the Unsubscribe Boxes. This is what Carolina Tiger Rescue is currently doing.  You are assuming they want communications and forcing them to say they don’t.

3. PASSIVE, EXPLICIT OPT-IN with PRE-CHECKED BOXES: The Subscribe Boxes are Pre-checked and Supporters are Opted-In Unless They Uncheck.  While I suppose there is little difference between this option and #2, because the person is on the list unless they take action otherwise (checking in #2 and unchecking in #3), we do see much more of #3 than #2 online. US laws require “affirmative consent” so, in this version, they are affirmatively saying “Yes” and you are providing the nudge or convenience with the pre-check. With #2, it’s not really “affirmative.”

This is mostly what we use at Nonprofit Marketing Guide, while sometimes doing #4 below. It’s super easy for users and grows the list relatively quickly. However, you are weighing quantity over quality with this choice. In other words, you will get some people on your list who actually don’t want additional email from you. When you go this route, make the boxes and wording around them big and clear, so you aren’t hiding anything.

4. ACTIVE, EXPLICIT OPT-IN with UNCHECKED BOXES: Supporters Must Actively Check Boxes to Opt-In. Required in Canada. This is the “best” practice. With this approach, you are in compliance with more parts of the world beyond the US. It does weigh quality over quantity — your list will grow slower, but you’ll be more confident that they do want email from you.

My advice to Susan: Switch your form to #3 or #4. 

Also, see Email Marketing Best Practices: Are You In or Out?

What do you think? Add your perspectives, advice, and resources in the comments.


Published On: August 8, 2016|Categories: Email Marketing, Fundraising|