Earlier this week ARS Technica reported on a ruling from the Missouri Court of Appeals stating that terms and conditions are enforceable even if the users are not forced to visit the T&C pages. Judge Rahmeyer, one of the panel members, did point out that the term in question, under what state laws the agreement would be enforced, was not an unreasonable request. She “do[es] not want [their] opinion to indicate that consumers assent to any buried term that a website may provide simply by using the website or clicking ‘I agree.'”
What does this have to do with email? Well, it means that reasonable terms in the agreements may still be binding even if the user does not read the full terms of the opt in before submitting an email address. In practical terms, though, there’s very little that has changed. Hiding grants of permission deep in a terms document has long been a sneaky trick practiced by spammers and list sellers. Legitimate companies already make terms clear so that users know what type of and how much mail to expect by signing up to a list. They also know that the legal technicalities of permission are not as important as meeting the recipients expectations.
Jeanne has a great post up at ClickZ comparing the performance of mail to an opt-in list to performance of mail to an opt-out list.
The article looks at opens, clicks and click through rates over 7 quarters (Q1 – Q4 2010; Q1 – Q3 2011) covering 330 million emails. I strongly suggest anyone interested go read the whole article.
The short version, though, is that the opt-in lists had more opens and more clicks than the opt-out lists. In some quarters it was double the number of opens and clicks.
This data is a strong indication that opt-in lists perform much better than even the best opt-out lists.
A lot of email marketing best practices center around getting permission to send email to recipients. A lot of anti-spammers argue that the issue is consent not content. Both groups seem to agree that permission is important, but more often than not they disagree about what constitutes permission.
For some the only acceptable permission is round trip confirmation, also known as confirmed opt-in or double opt-in.
For others making a purchase constitutes permission to send mail.
For still others checking or unchecking a box on a signup page is sufficient permission.
I don’t think there is a global, over arching, single form of permission. I think context and agreement matters. I think permission is really about both sides of the transaction knowing what the transaction is. Double opt-in, single opt-in, check the box to opt-out area all valid ways to collect permission. Dishonest marketers can, and do, use all of these ways to collect email addresses.
But while dishonest marketers may adhere to all of the letters of the best practice recommendations, they purposely make the wording and explanation of check boxes and what happens when confusing. I do believe some people make the choices deliberately confusing to increase the number of addresses that have opted in. Does everyone? Of course not. But there are certainly marketers who deliberately set out to make their opt-ins as confusing as possible.
This is why I think permission is meaningless without the context of the transaction. What did the address collector tell the recipient would happen with their email address? What did the address giver understand would happen with their email address? Do these two things match? If the two perceptions agree then I am satisfied there is permission. If the expectations don’t match, then I’m not sure there is permission involved.
What are your thoughts on permission?