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UK Law Relating to Default Settings for Opt-in / Opt-out Marketing Checkboxes (PECR)

Published on January 31, 2011
Tags: Web Site Law

In 2003, European regulations known as the Privacy and Electronic Communications Regulations (PECR) came into force. The purpose of these rules is to govern electronic and other marketing, particularly marketing relating to online activities. Other covered areas include telemarketing, faxes and SMS messages. The regulations are enforced in the UK by the Information Commissioner’s Office (ICO).

Since they came into force, there have been major issues surrounding the application of the PECR, with many organisations flouting the rules, whether intentionally or not. One major example of this is the opt-in/opt-out checkboxes found on many websites as well as in emails.

To illustrate, the regulations dictate that no individual should receive any marketing emails unless a series of criteria have been met (the same rules don’t apply to businesses). The criteria are:

  1. the individuals’ details must have been obtained by the company in question through a legitimate sale or negotiation;

  2. the sent message must relate to similar products offered by the sender;

  3. the individual must have been given the opportunity to refuse marketing messages from the sender and can easily opt out at any time of their choosing.

This means that companies who don’t offer individuals the means to opt out of marketing messages are in breach of the PECR and, therefore, both UK and European law.

The reason this is such a big issue is the way such opt out facilities are currently implemented. Take the example of an online retailer. When you make a purchase through that retailer’s online store, you will be presented with a series of checkboxes at the bottom of the form relating to marketing. In simple terms, these give you the chance to refuse marketing from the retailer and any third parties. The problem, though, is often in the way the checkboxes are worded. For example, it is common to find statements written in a negative manner (such as ‘click here if you do NOT want to receive information from us’).

This assumes automatic agreement unless the customer takes action to dictate otherwise and it is a problem in the world of online marketing: naturally, there is a desire and a need for online companies to market their business and services to customers, but they also have to comply with the PECR and the Data Protection Act to ensure that individuals’ rights of privacy are met. This means that assuming customers are willing to receive marketing emails unless they instruct otherwise is not only dangerous but increases the chances of the rules being breached.

This problem is exacerbated by pre-selected checkboxes. This most commonly happens where you have to check the box to opt in to a marketing messaging service – retailers and marketers often pre-select the checkbox in the hope individuals will leave it as it is. Conversely, in cases where you have to check the box to opt out, retailers and other businesses tend to leave the box unchecked to maximise their mailing lists. While they are in theory complying with the regulations, if an individual was confused by the phrasing or layout of the options, any complaint to the ICO would be likely to be upheld (the ICO receives around 5000 complaints every year on matters relating to unwanted marketing).

Of course, it can be argued that this is not just a problem related to online marketing practices: similar ‘opt in’ assumptions can be seen everywhere from pension schemes to organ donation, with new processes being bought in to assume the compliance and participation of individuals unless they explicitly state otherwise. The major issue for online marketers and businesses, though, is determining the reasons why people choose to opt out of marketing messages in the first place in order to work out the best ways to persuade them to opt in.

This requires much more careful action than wording opt in/opt out checkboxes in such a way as to ensure maximum compliance by default. It means that online marketers need to carefully consider what attracts individuals to certain websites in the first place and how they can keep their attention once they’re there, thereby encouraging them to sign up for marketing messages.

It has been widely reported that people are turned off by pop ups and other unwanted forms of advertising, so it’s likely that they are just as put off by marketers sending messages that the individual sees as being unsolicited, either because the marketer is flagrantly breaking the rules or because the individual accidentally opted in to something.

Perhaps the solution is as simple as having a good web design to catch people’s attention and then providing the best possible product / service to customers so they will be interested in finding out about new offers and services from the company in future marketing messages. This would be coupled with an obvious and easy means of opting out if an individual so desired (such as can be seen in email newsletters, which are required to include a ‘click here to unsubscribe’ link).

Whatever the solution, it is clear that there is currently a widespread problem relating to breaches of the PECR that is not only annoying to individuals receiving unwanted messages, but could ultimately damage the otherwise good reputation of a free and democratic internet.

By Chelsey Evans

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