Hands up if you said “everyone does so it, so it must be true”. The use of pre-checked ticked boxes is so prevalent these days that we can totally understand why anyone would think it’s the only way of getting consumers to agree to being added to a mailing list.

It’s well established that in order to comply with the Spam Act, you must have consent from the individual herself if you want to add her to your marketing database to send her information about your products and services, offer her a discount on a future purchase or tell her about an amazing competition you’re running. Everyone knows that there’s no marketing without consent.

What’s not so well established, however, is how you get consent.

We suspect that, somewhere along the way, a lawyer proclaimed that the only way to validly obtain consent is by way of an opt-in mechanism. That is, unless your customers expressly opt in to your mailing list (for example, by ticking a box next to words like “I agree to receiving information about offers and promotions”), you have to treat them as not consenting.

The problem, of course, is that no one ticks boxes and no one opts in to receiving marketing material (except maybe people in marketing).

We reckon that a very cheeky marketing/UX guru somewhere came up with the idea of pre-checking tick boxes to signify consent in advance on behalf of its customers. After all, if someone disagrees, he can simply untick the box himself. In reality, not only are boxes rarely ticked, they are also rarely unticked, which effectively equates to more names on the mailing list (#winning). Genius, right?

Actually, no. The truth is that pre-checked tick boxes are not legit.

The Australian Communications and Media Authority (ACMA), which is responsible for regulating the Spam Act, has made it clear that a pre-checked tick box is not effective consent. Before you say “who cares, everyone else does it, we’ll be fine”, have a look on ACMA’s website and its enforcement activity in the last year. It’s not a toothless tiger.

Our advice – think outside the box. While it’s clear that the Spam Act requires consent before marketing, nowhere does it say that opting in is the only way to achieve consent. In our opinion, opting out works too. Want to know how? You’ll have to opt in for that one.