With seven-digit penalties, many marketers are looking carefully at how they are addressing the Canada Anti-Spam Law (CASL) and similar legislation in other parts of the world. Unfortunately, many are making a critical error that may later haunt them – and cost.  They are assuming that an email “double-opt-in” constitutes Express Consent. Sometimes it does – and sometimes it doesn’t.

First, some definitions.  Express Consent is when a person explicitly has given permission for you to send Commercial Electronic Messages to them.  Double opt-in, on the other hand, is different. After a user enters their name and email address on a website form, the email system sends a validation email back to that user.  When they click a specially encoded link within that email, they will have validated their email address, and “double-opted-in” to the list.

1) Express Consent doesn’t require double opt-in.

There are many ways to get Express Consent that have nothing to do with double opt-in.  Consider these examples:

• A person clicks an “Express Consent” link within an email, and you capture the action in your database.
• A form is filled out on your website asking for Express Consent, and this is captured in your database.
• A verbal “yes, I consent” either during a meeting, or over the phone.
• An event feedback form that has a check-box for express consent.
• A guest register or attendance record, where there is a check box for Express Consent.
• An email reply from a reader, where they manually write in that they are giving Express Consent.
• A lead form from a tradeshow where they have given Express Consent.

All of these examples are valid, but there are potential pitfalls: Can you prove that they themselves actually gave you Express Consent?  And are you capturing what they have give Express Consent for?  Since the burden of proof is on you, maintaining appropriate records is critical.  This means saving event feedback forms, emails, lead forms, etc.  And it means confirming verbal conversations in writing.  Using double opt-in has it’s advantages, but it isn’t the only game in town.

2) Double opt-in does not automatically mean that you have Express Consent.

Many organizations already have part of their email address lists that are double opted-in, but does this mean that those people have provided Express Consent?  Not necessarily – consider these examples:

• A subscriber had double opted-in, but you later changed your email system. You transferred all of the “old” email addresses into the new system, but the proof of double opt-in stayed in the old system – which is no longer available.
• A subscriber had double opted-in a number of years ago where they had agreed to receive X.  Yet today, you are sending them Y – and in the future, you may wish to send them Z.  You do not have Express Consent for Y or Z – even though your system shows them as having double opted-in.
• A subscriber had double opted-in a number of years ago, but since the web form has changed many times over the years, you don’t have proof of what they had actually agreed to when they originally signed.  You may indeed have Express Consent, but you can’t prove it.  (If this is the case, here is how to sleuth your way to uncovering “old” versions of your site, and proof.)

While double opt-in does not automatically mean that you have Express Consent, at least having something (eg the double opt-in) is better than nothing.

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