What’s in a checkbox? (revisited)

Last year I wrote about implied consent, and the moral dilemma I faced when my then-employer changed its mailing list from opt-in to opt-out.

I summarised that:

When I visit a site, and they’ve pre-ticked the “spam me” checkbox, I trust them just a little bit less. I feel like they’re out to trick me. They’re not breaking any rules, but it feels… ungentlemanly.

As I covered in the blog post, trust is a big issue, and it’s one of the things holding the UK Government back from making organ donation opt-out – despite the dramatic increase such a change would have on the donation rate.

Graph from Johnson & Goldstein (Science, 2003) showing comparative organ donation rates in European countries

But it’s not just governments that have to worry about losing their citizens’ trust. John Lewis, the posterchild of modern British respectability and restraint, recently found itself in court after Sky News producer Roddy Mansfield accused them of sending him unsoliticted emails.

It turns out John Lewis’s online sign-up process includes a pre-ticked email checkbox, and Mansfield unwittingly left it ticked.

“John Lewis argued that because I had not opted-out of receiving their emails, I had automatically opted-in,” he said. “But an opportunity to opt-out that is not taken is simply that. It does not convert to automatic consent under the law and companies risk enforcement action if they use pre-ticked boxes.”

Mansfield argued that John Lewis had broken Regulation 22 of the Privacy and Electronic Communications Directive 2003:

“a person shall neither transmit, nor instigate the transmission of, unsolicited communications for the purposes of direct marketing by means of electronic mail unless the recipient of the electronic mail has previously notified the sender that he consents”

In addition, Mansfield noted that John Lewis had also gone against the Information Commissioner’s guidance on email marketing, which states that:

“Best practice is to provide an unticked opt-in box, and invite the person to confirm their agreement by ticking.”

“The fact that someone has failed to object or opt out, only means that they have not objected. It does not automatically mean that they have consented.”

In light of this evidence, the judge—astonishingly—actually found against John Lewis, and ordered them to pay damages.

“This case was a very specific set of circumstances and in this instance whilst we do not agree with the decision, we will abide by it.” said a John Lewis spokesperson – no doubt with a lovely grey suit and perfect hair. “We apologise to Mr Mansfield that he was inconvenienced by our emails.”

So the precedent has been set. Who’s next?