Is Double Opt-In Required For SMS Marketing?
Yes, a double opt-in is required for SMS marketing. While a double opt-in is not strictly a requirement of the Telephone Consumer Protection Act (TCPA), the level of confirmation a double opt-in requires, makes it the only practical way of meeting the letter of the law.
What is a double opt-in? In SMS marketing, it’s when a brand requires that a consumer reply “YES” via text message, to confirm they want to opt-in to a recurring text messaging program. This text message can either be in response to a consumer text messaging an SMS keyword to a short code, or entering their mobile phone number into a web form.
Why is it that even though a double opt-in is not strictly a requirement of the TCPA, is it required in SMS marketing to meet the letter of the law? That’s because the burden of proof to establish that a consumer provided consent to opt-in to a brand’s recurring messaging program lies with the brand. This means that it’s the brand’s responsibility to prove that by text messaging a short code, or entering a mobile phone number into a website form, the consumer was aware that they were consenting to opt-in to the brand’s recurring text messaging program.
In a perfect, non-litigious world, the mere action of a consumer text messaging a short code, or entering a mobile phone number into a website form would be good enough. Unfortunately this is not the world we live in, as TCPA plaintiffs can claim that they were not aware that by text messaging a short code, or entering a mobile phone number into a website form, they were giving their consent to opt-in. This is true, even if the brand thought they were clearly and conspicuously disclosing this information before consumers took either of those actions.
It’s for that reason that a double opt-in is required for SMS marketing, as it creates a digital text messaging audit trail of a consumer’s consent to opt-in to receive a brand’s recurring text messages. An example of a double opt-in message that would be commonly used by a brand to opt-in a consumer is below.
Brand Name: Reply YES for recurring autodialed SMS/MMS marketing msgs. No purchase rqd. Msg&data rates may apply. Terms apply www.brand.com/sms-terms
As you can see in the above text message, it would be nearly impossible for a TCPA plaintiff to claim that they were not aware they were opting into a recurring text messaging program by reply “YES” to that text message. The best part about using a double opt-in is that if there was ever a dispute regarding whether or not a consumer gave their consent, it would be extremely easy for the brand to prove that the consumer did in-fact give their consent. All the brand would have to do is lookup the consumer’s text messaging history in whatever SMS marketing software provider they’re using, and they’d have an electronic record of the consumer consenting (replying “YES”) to receiving the brand’s recurring text messages.
Another reason we recommend a double opt-in for SMS marketing is to bind consumers to an arbitration clause. If you’re interested in learning more about arbitration clauses for SMS marketing, we suggest you check out this blog post by Adam Bowser from Arent Fox. Adam’s practice focuses on complex TCPA litigation, including class action trials and appeals, so he’s a big advocate of using arbitration clauses in SMS marketing.
Do you have questions about using a double opt-in for SMS marketing? If so, get your questions answered by leaving a comment below, and we’ll do our best to answer them.