In an article in EmailLabs, Kirill Popov reports that the Email Sender & Provider Coalition (ESPC) has added “Affirmative Consent” to its standards.
According to Popov, the ESPC has revised both its Member Pledge and Best Practices Guide to include a statement requiring its members to follow the standard of affirmative consent, both in its U.S. and European definitions, when adding email addresses. It also prohibits sending commercial email to an email address without prior affirmative consent of the addressee as defined by the CAN-SPAM Act of 2003 or the European Commission Privacy and Electronic Communications Directive.
Popov says the ESPC has 72 members, including email service providers like EmailLabs, reputation and accreditation firms, email-affiliated companies, and others with email sending, filtering, security and mailbox concerns.
Based on the ESPC Member Pledge, Affirmative Consent as defined by the U.S. CAN SPAM Act of 2003 means: “The recipient expressly consented to receive the message, either in response to a clear and conspicuous request for such consent or at the recipient’s own initiative; and if the message is from a party other than the party to which the recipient communicated such consent, the recipient was given clear and conspicuous notice at the time the consent was communicated that the recipient’s electronic mail address could be transferred to such other party for the purpose of initiating commercial electronic mail messages.”
Consent as defined by the European Commission Privacy and Electronic Communications Directive means: “Within the context of an existing customer relationship (where a natural or legal person obtains from its customers their electronic contact details for electronic mail, in the context of the sale of a product or a service), it is reasonable to allow the use of electronic contact details for the offering of similar products or services, but only by the same company that has obtained the electronic contact details in accordance with Directive 95/46/EC. When electronic contact details are obtained, the customer should be informed about their further use for direct marketing in a clear and distinct manner, and be given the opportunity to refuse such usage. This opportunity should continue to be offered with each subsequent direct marketing message, free of charge, except for any costs for the transmission of this refusal.”
Popov clarifies: “In other words, affirmative consent requires that the recipient must make an active, informed request to receive your emails and consent to share the address with third parties. Passive consent, such as not removing the checkmark from a pre-checked site-registration form, doesn’t meet the affirmative-consent standard.”
The author further warns that there is a CAN-SPAM provision requiring those who use passive consent devices such as pre-checked boxes to label their commercial emails as advertisements or solicitations.
Perhaps even those who are not members of the ESPC better take heed.