While double opt-in is not 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 requirements of the law.
What is a Double Opt-in?
In SMS marketing, double opt-in is when a brand requires that a consumer reply “YES” via text message to confirm they want to be included in a recurring text messaging program. This request from the brand to opt-in 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.
Single vs Double Opt-In
Interested in learning the difference between a single opt-in, and a double opt-in? Check out the video to see how both SMS marketing campaigns work.
Is Double Opt-In Required?
Even though double opt-in is not strictly a requirement of the TCPA, the burden of proof to establish that a consumer provided consent be a part of 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 be a part of the brand’s recurring text messaging program.
In a perfect world, the act of a consumer text messaging a short code, or entering a mobile phone number into a website form would be good enough. Unfortunately, TCPA plaintiffs can claim that they were not aware that they were opting-in to a recurring text message program when they text messaged a short code, or entered a mobile phone number into a website form. TCPA plaintiffs can make this claim even if the brand thought they were clearly and conspicuously disclosing this information before consumers took either of those actions.
A double opt-in creates a digital text messaging trail of a consumer’s consent to opt-in to receive a brand’s recurring text messages, ensuring that the brand can prove the consumer knowingly opted-in, if they ever needed to.
Double Opt-In Example
Here is an example of a double opt-in message exchange that would commonly be used by a brand to opt-in a consumer.
If a consumer opts in after receiving the above message, it would be nearly impossible for them to later claim that they were not aware they were opting into a recurring text messaging program by replying “YES” to that text message.
If there were ever a dispute regarding whether or not a consumer gave their consent, it would be easy for the brand to prove that the consumer did, in fact, give their consent.
Another reason that 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. He’s a proponent of using arbitration clauses in SMS marketing.
Do you have questions about using a double opt-in for SMS marketing? If so, leave a comment below and we’ll do our best to answer them.
Double Opt-In Variations
Did you know there’s more than just one way to setup a double opt-in for your SMS marketing campaign? Check out the different ways below that you can use setup double opt-ins for your own SMS marketing campaign.
Double Opt-In Best Practices
The CTIA and the wireless carrier require certain best practices when performing a double opt-in for an SMS marketing campaign. To learn more about these best practices, check out the video below.