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In what could signal the beginning of the end of the prechecked consent box, the Email Sender & Provider Coalition now explicitly requires its members to follow "affirmative consent" in both its U.S. and European definitions as the standard to follow when adding email addresses.
The ESPC (formerly the Email Service Providers Coalition) just revised its Member Pledge and issued a new Best Practices Guide with a statement that commercial email can't be sent to an email address unless "prior affirmative consent of the individual has been obtained, as defined by the CAN-SPAM Act of 2003" or the European Commission Privacy and Electronic Communications Directive.
The pledge applies to all 72 members, which include email service providers like EmailLabs, reputation and accreditation firms, email-affiliated companies and others with an interest in email sending, filtering, security and mailbox concerns.
The CAN-SPAM Act defines affirmative consent as the recipient's express consent to receive a message, either as initiated by the recipient or in response to a sender's "clear and conspicuous request."
CAN-SPAM also extends affirmative consent to third-party address-sharing. It requires that the recipient be 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."
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 prechecked site-registration form, doesn't meet the affirmative-consent standard.
In fact, if you use passive consent devices such as prechecked boxes, your email messages become subject to another CAN-SPAM provision requiring you to label your commercial emails as advertisements or solicitations. This can hurt your image and credibility with your recipients and make you more subject to spam complaints.
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