There has been a good deal of public discussion of pending legislative action to relieve internet service providers of the obligation to obtain affirmative consent of customers [‘opt-in’] before collecting and sharing customer information. Those engaged in digital marketing via e-mail and text message may wonder what this means for their efforts. In our view, the correct answer is ‘relatively little’. The nullification of the pending regulations should not dictate any relaxation of compliance efforts whether by increased use of an opt-out strategy or otherwise.

In the first instance, the legislative action simply stopped the effectiveness of pending rules before they became active, so there is no change in actual requirements. Nullification of these rules may be beneficial to marketers if they are challenged in formal proceedings by a consumer or a consumer class over their marketing practices.

However, from the standpoint of avoiding controversy in the first place, we still suggest obtaining affirmative consent to data collection and sharing in all cases. There is no question that such action is always required for text solicitations by the Telephone Consumer Protection Act. Many companies have learned this the hard way after being forced into eight and nine figure settlements of class action claims brought under the TCPA which provides for statutory damages of $500 per violation.

As a practical matter, it may be easier (or no harder) to obtain the opt-in for all digital marketing campaigns without distinguishing between e-mail and text. That is, obtain advance consent for all communications and the dissemination of the content provided by recipients. It is often the case that this can be accomplished by having the consumer simply check an ‘I AGREE’ box or provide their mobile phone number.

In any event, since there are multiple legal theories and laws (state and federal) which can be invoked by consumers and consumer classes who believe that their information has been wrongfully – i.e. deceptively - collected or used, exposure can be mitigated by taking all feasible measures to establish that there was no overreaching and that the persons in question were well aware of and agreed to the actions of which they complain. 

Good, closely followed website policies disclosing what is to occur with information of visitors coupled with electronic recordation of implicit and explicit agreements are most helpful in responding to such claims. However, even with the suspended rules (which by their terms only applied to ISP’s), these policies are not sufficient to immunize marketers from all claims based upon allegedly deceptive practices or violations of contractual or statutory privacy rights and obligations. Demonstrating that the claimant in fact agreed to what they are now claiming was unfair is likely to discourage the pursuit of many claims or allow summary disposition of those which do occur. While no one can say for sure, it may also be the case that consumers respond better to communications to which they agree than to those which seemingly just appear, without meaningful request or approval, from the original marketer or someone else.

Digital marketing is here to stay and an increasingly important tool for most businesses. As its importance grows, so does legal exposure, with or without the suspended rules. Proper guidance, taking into account both evolving legal and technical considerations regarding how to apply the numerous rules which exist, is essential for marketers to effectively pursue such campaigns.