What Is Implicit Consent for Email Marketing?

Implicit consent (also known as express consent) occurs when a user takes a direct action to give permission. This is typically through an opt-in process where a customer voluntarily signs up for your mailing list, subscribes to a newsletter, or ticks a checkbox to receive marketing updates.

For example, if someone fills out a form on your website specifically to subscribe to your email newsletter, they’ve given implicit consent. This is the most secure type of consent for email marketing, as it leaves little room for legal grey areas.

What Is Inferred Consent for Email Marketing?

Inferred consent, on the other hand, happens when a user’s actions imply they would expect marketing communications. Inferred consent is not explicitly given but deduced from actions like purchasing, downloading a free resource, or engaging with your website in ways that suggest a business relationship.

For example, if a customer buys a product from your website and provides their email address during checkout, you may infer they expect to hear from you. However, inferred consent is riskier as it's open to interpretation and can lead to customer complaints if overused.

The Key Differences Between Implicit and Inferred Consent

While both types of consent allow you to send marketing emails, implicit consent is much stronger and more transparent than inferred consent. Here are the main differences:

• Explicit Action: Implicit consent comes from a straightforward, positive action, like ticking a box. Inferred consent relies on user behaviour or previous interactions.
• Legality: Implicit consent is legally safer when marketing both locally and internationally, especially under stricter regulations like GDPR. Inferred consent is allowed but must be cautiously, especially when the relationship with the customer is unclear.
• Longevity: Implicit consent lasts as long as the user stays subscribed. Inferred consent can be time-sensitive and should only be relied on for a while.

Why Email Marketing Consent Matters: Legal Requirements in Australia

In Australia, email marketing is regulated under the Spam Act 2003, which mandates that businesses can only send marketing emails if they have express (implicit) or inferred consent. Failing to comply with this can result in fines of up to $1.1 million per day. Therefore, understanding and adhering to these rules is vital.

Additionally, you must include a clear and functional unsubscribe option in every email and honour opt-out requests promptly. Whether you are using implicit or inferred consent, these rules always apply.

Best Practices for Managing Consent in Email Marketing

To ensure your email marketing stays compliant and effective, here are a few best practices:

1. Use Double Opt-In: This adds an extra layer of protection by requiring users to confirm their email address after signing up, ensuring that consent is valid.
2. Provide Clear Opt-Out Options: Always include a visible and easy-to-use unsubscribe link in every email.
3. Keep Consent Records: Store records of when and how consent was obtained. This can help if your compliance is ever questioned.
4. Be Transparent: Clearly explain what kind of emails the user will receive when they sign up. Avoid pre-ticked boxes, as these can lead to complaints.
5. Regularly Clean Your Email List: Remove inactive subscribers and those who haven’t interacted with your emails for an extended period. This keeps your list healthy and compliant.

Common Mistakes Small Businesses Make with Email Marketing Consent

1. Relying Too Heavily on Inferred Consent: While inferred consent is useful in some cases, small businesses often overuse it, assuming all customers will be fine with receiving marketing emails. This can lead to high unsubscribe rates and even complaints.
2. Not Refreshing Consent: Consent isn’t forever. If you’re using inferred consent, it’s essential to refresh it by asking your audience to opt in explicitly after a certain period.
3. Ignoring Unsubscribe Requests: Not processing opt-out requests promptly is one of the fastest ways to violate the Spam Act, and it can damage your brand’s reputation.

How to Stay Compliant: Tips for Small Businesses

1. Opt for Explicit Consent: Whenever possible, use implicit (explicit) consent as the foundation for your email marketing. It’s the safest and most customer-friendly option.
2. Use Clear Language: Make sure your opt-in forms clearly state what the customer is signing up for. Avoid jargon and legal language that can confuse the user.
3. Segment Your Audience: Don’t send blanket emails. Target your marketing to relevant audiences based on their interests and behaviours.
4. Monitor Compliance Regularly: Ensure your consent practices and policies are regularly reviewed and updated as regulations change.

FAQs

1. Can I still use inferred consent under the Spam Act in Australia?
Yes, inferred consent is allowed under the Spam Act but must be carefully managed. Inferred consent should only be used when a reasonable relationship exists with the customer, such as a recent purchase. Always ensure you are transparent about how you collect and use data.

2. What’s the best way to gather implicit consent?
The most effective way to gather implicit consent is through a transparent, clear opt-in process, such as a sign-up form or checkbox that explains what users are agreeing to. Double opt-in methods, where the user confirms their email address, are also highly recommended.

3. How long does inferred consent last?
Inferred consent typically has a shorter lifespan than implicit consent. To stay compliant and avoid potential complaints, it’s recommended to refresh or confirm inferred consent regularly, such as after six to twelve months of inactivity.

4. Do I need to ask for consent again if I already have inferred consent?
It’s good practice to ask for explicit consent if you only have inferred consent, especially if a significant time has passed or the user hasn’t recently engaged with your emails. This ensures compliance and maintains trust with your audience.

5. What happens if I don’t comply with email marketing laws in Australia?
Non-compliance with email marketing laws, such as sending unsolicited emails, can result in penalties under the Spam Act, including fines of up to $1.1 million per day for businesses. It can also damage your brand’s reputation and customer trust.

Conclusion

When it comes to email marketing, understanding and correctly applying implicit and inferred consent can save your small business from legal headaches and build stronger customer relationships. Always aim for explicit consent when possible, and regularly update your practices to ensure compliance with Australian laws.

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This guide is written by Hedgehog, a DIY digital marketing consultancy specialising in small and medium businesses in Australia. We offer digital marketing consulting, coaching, and training.