The double opt in process: In­tro­duc­tion and guide­lines

When did you last receive pro­mo­tion­al e-mails from providers whose newslet­ter you never signed up for? Tech­ni­cal­ly busi­ness­es are allowed to do this in the US, unlike in other countries such as Germany where a company first needs per­mis­sion from the recipient before it sends out newslet­ters or e-mails. That’s why the double opt in process is mandatory. Although not com­pul­so­ry in the US, it might not be a bad idea to ensure you don’t annoy potential customers.

Confirmed opt in used to be standard practice. All the user had to do to register for the newslet­ter, was to enter their e-mail address into the list. Due to in­creas­ing amounts of e-mail spam, this method is no longer feasible since there was such a high risk of e-mail addresses being misused. The CAN-SPAM (Con­trol­ling the Assault of Non-Solicited Pornog­ra­phy And Marketing Act of 2003) Act was es­tab­lished to give re­cip­i­ents the right to opt out whenever they wanted to. Any business that doesn’t comply will face tough penalties.

The term 'per­mis­sion mar­ket­ing' is when companies aim to sell goods and services, but only when the potential customer has given their per­mis­sion. This is to prevent them being over­loaded with in­for­ma­tion, known as 'in­ter­rup­tion mar­ket­ing'. E-mails with com­mer­cial content should not continue to be sent once the recipient has opted out. If this rule isn’t adhered to and unwanted ad­ver­tis­ing is still sent, the company could face warnings and fines. Double opt ins are the only legally-secure solution in e-mail marketing. Other forms of marketing, such as push no­ti­fi­ca­tions for apps or SMS services can be also confirmed via a two-step process.

The biggest advantage of the double opt in process regarding newslet­ters and e-mails is obvious: prac­ti­cal­ly full legal certainty. Why not 100% legal certainty? This only exists if you also take the structure of the con­fir­ma­tion e-mail into account because this has to follow certain rules (see below):

A further advantage: the two-stage con­fir­ma­tion shows that the recipient is def­i­nite­ly in­ter­est­ed in receiving e-mails and newslet­ters from the company. If a user receives unwanted e-mails in their inbox, it could have a negative effect on the way they view your business. The business could suffer if their e-mails are seen as spam.

Many marketers see con­fir­ma­tion e-mails as dis­ad­van­ta­geous. It’s an extra hurdle to overcome in order to get another contact on board. The recipient may change their mind or forget to click on the con­fir­ma­tion link. A popular method to ensure that the recipient confirms the sub­scrip­tion is by offering them coupons or discount codes which can be used once the con­fir­ma­tion has gone through.

Im­ple­ment­ing this technique requires high ad­min­is­tra­tive and technical effort. There are pro­fes­sion­al newslet­ter software solutions available that make it easy for you to enable a double opt in function in your e-mails.

Although the CAN-SPAM Act does eliminate the private right to sue, there have been reports in the past of gov­ern­ment au­thor­i­ties or internet service providers filing lawsuits with the intention of suing companies for spamming. There are even lawyers in the US who spe­cial­ize in lawsuits against e-mail spammers, which of course are rife. You could be sued up to $16,000 for sending just one e-mail.

To make sure you don’t get sued, you need to make sure your newslet­ters are CAN-SPAM compliant:

• Include a link to opt-out

• Include your company’s actual address

• Make sure the subject line is suitable

• Make sure the e-mail address you use is friendly and ap­pro­pri­ate

• If the e-mail contains ad­ver­tis­ing, specify this in the body of the e-mail

• Remove anyone wishing to opt out within ten business days

If your company continues to spam users, you could find yourself being sued by people like Daniel Balsam, a marketer from San Francisco, who became a lawyer after receiving one too many spam e-mails himself. He spends his days filing lawsuits against e-mail marketers who aren’t adhering to CAN-SPAM guide­lines. Many companies find it easier to just pay a small set­tle­ment rather than go through the courts which could prove costly. He looks out for e-mails with mis­lead­ing subject lines or those without 'opt out' pos­si­bil­i­ties.

Reputable e-mail marketing is based on the consent of the recipient. According to the de­f­i­n­i­tion, spam is nothing but unwanted ad­ver­tis­ing. Busi­ness­es that send out newslet­ters and e-mails should use the double opt in process. You can’t do things by halves since you only achieve legal certainty when you adhere to the guide­lines when creating con­fir­ma­tion e-mails. Doc­u­ment­ing the most important in­for­ma­tion such as IP addresses and the date of the reg­is­tra­tion and con­fir­ma­tion is always a good idea. This way you can quickly fend off any justified warnings.