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.