Should Ticked Consent Be Valid?


How many times have you gone online to buy or book something and found that the website owner is asking your consent to send you other marketing or share your information with other third party suppliers? I would hope it is every time you go online however, how many times have you found these boxes already ticked?  More often than not I would suggest which means you have to ensure that you un-tick the box before proceeding to prevent the avalanche of emails from all and sundry hitting your inbox…….

Given this scenario, it is interesting to hear that the European Parliament’s Civil Liberties, Justice and Home Affairs Committee is now proposing that the pre-ticking of these boxes be stopped as it does not give the individual their free and explicit right of consent. Basically under the current regime, consent boxes can be pre-ticked and the consumer then has to opt-out of giving consent when, under best practice systems everyone should only have to opt-in, ie: tick the box to say that they unequivocally agree to their data being processed in the way the website is saying it will. Thus consent is being freely given by the consumer and they understand what they are opting in to.

Now, is this fair? Looking from both sides of the fence you will get different opinions. From the consumer angle it will be a very definite ‘yes’ as it will decrease the amount of spam and junk emails they receive and also means they have greater control over what they are asking for and do not feel ‘tricked’ by what is often perceived to be sharp practice by the online marketers. From the industry you will get a resounding ‘no’ as this is their bread and butter, they sell on lists of consumers who have ‘opted-in’ to receive third party emails and e-marketing. That fact that this is done be using an enforced opt-in has nothing to do with the ethics of the situation, this is a marketing initiative that goes back many years to when we used paper forms and the wording was something like “XYZ Ltd will pass your information on to other interested companies it feels you will benefit from, if you do not want us to do this please tick here” and a tick box was added. This was not regulated at all and some companies would switch between the opt-out, as above, to an opt-in on their next mailing. This meant the consumer had to carefully read the opt-in/out statement to ensure they were ticking to receive or not receive.

This has transferred, in the current scheme of things, to the pre-ticked boxes in the online forms and, although this should be fully visible, is often buried in their terms and conditions or privacy notice, which the consumer should be reading but who actually does? So the business side of the equation believes that there is a precedent for supplying the pre-ticked boxes as this is what used to happen with the old paper opt-outs but is this right?

Basically I do not think there is any reason why the opt-out should be used in this day and age. We are all capable of understanding what we read and we should not be made to go hunting for something that is one of our basic rights, that of preventing unwanted marketing. The Information Commissioner has also said many times in the past that he believes the use of opt-outs should be stopped as it is an unfair burden on the consumer and is denying their rights. It would appear the EU is now coming to the same decision and I for one would support this all the way as I do ot derive any pleasure from trying to opt-out but it is much nicer to be able to say “yes, I think I would like to receive information from you in the future”. In fact, I find myself using websites that make me opt-out, les and less and this is the way forward, if we all did this how would they survive? I leave it to you to decide, should we be opting-out or opting-in.

I look forward to hearing your thoughts

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About KPG Professional Services

Kevin has been working in the Data Protection field for over 20 years with The Post Office, Royal Mail Marketing, The Royal Bank of Scotland and Glasgow Housing Association Ltd. He is also trained in the Freedom of Information (Scotland) Act 2002 and has supplied expertise and support in this discipline for the past 4 years. In his leisure time Kevin is a presenter on Hospital Radio, an SRU rugby referee and referee coach and also the stadium announcer at McDiarmid Park for his team St Johnstone in the Scottish Premier League.
This entry was posted in Cookies, Data Protection, Email, Fair Processing, ICO, Information Commissioner, Information Security, Justice. Bookmark the permalink.

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