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EU Bans Prechecked Boxes: All of Them?


By Ken Magill

Please tell me the EU hasn’t banned all prechecked boxes—as in all of them.

EU authorities last week published a consumer-protection directive that included the ban of prechecked boxes during online purchases.

The ban on prechecked boxes was aimed at stopping airlines, for example, from forcing customers to uncheck permission boxes to opt out of buying extra services such as insurance when buying airline tickets.

Fair enough. Customers shouldn’t have to opt out of spending cash on add-on purchases, but if the directive extends to email list building, it’s an overreach and I can’t find anything that says it doesn’t.

“With the new Directive, pre-ticked boxes will be banned across the European Union,” said a release announcing the directive. I read that as pre-ticked boxes will be banned across the European Union.

Outlawing the prechecked box in email list building is a case of needless interference in a value-for-value transaction between two private parties.

Some marketers precheck permission-to-send-email boxes on transaction pages to speed the process of building their lists. People often don’t make the effort to check the permission box, so to overcome subscriber inertia, some marketers check it for them.

Best practice? Certainly not. Worthy of legislative attention? Again, certainly not.

As stated here repeatedly, the mechanisms are already in place to punish marketers who abuse email recipients with unwanted messaging. If they spam people, they get treated as spammers and fail to reach people’s inboxes. It’s that simple.

Email recipients are perfectly capable of punishing senders who abuse the permission process. They can simply hit the spam button.

Moreover, inbox providers such as Yahoo!, Gmail and Hotmail do a stunning job of sorting wanted from unwanted messages.

Two of my most wanted and anticipated emails are messages from Cigar Auctioneer and Webber-Stephens Products, both the results of prechecked boxes. I began receiving messages from Cigar Auctioneer as a result of my relationship with its parent, Famous Smoke Shop in Easton, PA.

Famous Smoke Shop began sending me email after my first purchase without getting explicit permission. Then it began sending me email from Cigar Auctioneer, an affiliated brand previously unknown to me.

Risky? You bet. I even took the time to email their marketing department to tell them that they were risking being labeled a spammer by sending messages from Cigar Auctioneer without clearly pointing out its relationship to Famous Smoke Shop.

But since I began getting email from Cigar Auctioneer, I have thankfully been able to stop paying retail prices for my smokes. I am now spending about half of what I spent last year on cigars.

I began getting recipe-of-the-week messages from Weber every Friday after I bought a refurbishing kit for my Weber grill. I never gave Weber permission to send. Yet, I open that email every week and cook about half the suggested recipes.

The point is both Cigar Auctioneer and Weber overcame the risks of presumed permission with repeated offers of value. It can be done and should be allowed to be attempted. The punishment is already in place for those who presume permission after a purchase and send emails that offer no value.

If a merchant prechecks the permission box but sends email its customers want, its mail will get delivered, possibly even marked as priority as is the case with Weber and Cigar Auctioneer in my Gmail account.

In the EU, attempting to build relationships similar to the two outlined above just became needlessly impossible—that is, unless I have misunderstood the ban.


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Terms: Feel free to be as big a jerk as you want, but don't attack anyone other than me personally. And don't criticize people or companies other than me anonymously. Got something crappy to say? Say it under your real name. Anonymous potshots and personal attacks aimed at me, however, are fine.

Posted by: Rex
Date: 2016-01-07 23:35:39
Subject: Check Box Ban

How is it that you understand it for insurance or airline tickets, but not for marketing? Aren't they all value-for-value propositions? I mean, it's either deceptive or it's not. Not deceptive when it's the other guy, and not when it's you.

Companies have spent a great deal of money designing "dark patterns" for their websites. They use visual and psychological tricks to get the customer to look past the pre-checked boxes, in order to manufacture consent. Millions of dollars have been spent figuring out how to manipulate people via this tricks.

But consent through trickery has never been legitimate, and the EU directive simply codifies this for websites. The pre-checked boxes probably wouldn't have held legal sway anyway.

As much as requiring willful consent may seem like an awful thing to some, it just seems like common-sense to others. If one doesn't have the enthusiastic consent of one's potential customer, one should up the quality of their offering until enthusiastic consent appears. Nobody should rely on trickery to build a business, save for the scam artist.

Besides, not getting willful and overt consent is a good way to get oneself on blacklists, and that will harm your business far more than not getting the odd customer who just really, really wanted to be on another marketing list. Assuming said person even exists, and frankly, I'm not sure that they do.
Posted by:
Date: 2011-10-18 16:20:28
Subject: EU Bans Prechecked Boxes

"Best practice? Certainly not. Worthy of legislative attention? Again, certainly not." Reason sometimes appears in the halls of power -- although as this post observes, not often. In vetoing a bill forcing kids to wear helmets when skiing or snowboarding, California Governor Jerry Brown observed, "Not every human problem deserves a law."
Posted by: Ken Magill
Date: 2011-10-18 16:04:54
Subject: Update: Maybe Not as Bad as it Looks

Dutch email expert Remy Bergsma just pointed out on Twitter that this is a directive and not law. Hopefully countries won't adopt the ban as broadly as it seems to be written.