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Express Written Consent: Definition and All You Need to Know

Updated: Sep 1, 2023


A person giving his consent to receive marketing text messages


According to TCPA (Telephone Consumer Protection Act), explicit written consent means a written contract that has been signed by the person who is receiving the phone call or text message. The agreement must contain a transparent and easily noticeable disclosure that permits the company to send telemarketing messages.


But we often come across the word express consent. Let’s understand what Express Consent is.



What is Express Consent?


Express consent in SMS marketing refers to obtaining a person's explicit and affirmative agreement to receive promotional messages or updates through text messaging. In other words, it means the person has given explicit permission to receive SMS marketing messages from a specific business or organization.


To obtain express consent, businesses must inform individuals of the purpose of their text messages, the frequency of messages, and the types of content they will receive. Express consent can be obtained through opt-in mechanisms such as filling out a form or sending a text message with a specific keyword to a designated phone number.


For further discussion let’s take our friend Ronnie. Ronnie, who is an employee of a big restaurant is thinking of using SMS for his marketing campaign, but he is confused between Express Consent & Implied Consent. First, let’s understand the subtle difference between Express Consent and Implied Consent.



Difference Between Express Consent and Implied Consent


The terms, express consent and implied consent, seem similar, but there is a subtle difference between these two. Let’s understand this with an example.


Express consent is when someone explicitly gives permission or authorization for something to happen while implied consent is when someone gives permission or authorization without explicitly stating it.


For Example, Ronnie wants to organize a party for his colleagues in his home since he got promoted. Party comes with expenses, including decorating his home and taking the permission of his beloved spouse. He asks for her permission, and she gave her consent stating “Yes, my love, you have my consent to use the house for your office party.” This is an example of express consent (Verbal Consent). Now suppose, his spouse did not express consent. But at the same time, she did not object either. This is an example of implied consent.



NOTE

  • In case you started your SMS campaign considering implicit consent as explicit consent and your customer got irritated, then be prepared to run after court because the customer has the power to sue you.

  • Also, as a precautionary measure keep some hefty balance in your bank account because the penalty charged by the TCPA (Telephone Consumer Protection Act) is heavy. So, don’t start bombarding your customer with campaign messages once you have their details. So, let’s briefly discuss what expressed written consent under TCPA is all about.



Difference Between Express Consent and Informed Consent


Informed consent is the process of providing an individual with all the details related to medical or legal procedures or treatment, including its nature, risks, benefits, and alternatives. The main purpose is that the individual must understand the information provided and voluntarily agree to the proposed action.


So, express consent is a specific act of agreement given by an individual, informed consent is the process of providing individuals with all the necessary information to make an informed decision about whether to give express consent or not.



Express Consent Example


Here are some examples of expressed consent that will enlighten you on the topic of expressed consent.

  • A customer filling out a form on a website agreeing to receive marketing emails.

  • A patient signs a consent form before undergoing a medical procedure.

  • An individual verbally agrees to receive phone calls from a specific telemarketing company.

  • A customer texting a keyword to a short code to opt-in to receive text message offers.

  • A user agreeing to an app's terms and conditions, which includes receiving push notifications.



Don't press send without obtaining Expressed Written Consent - TCPA

We as marketers often have this urge to bombard our potential customers with lucrative offers once we have their contact details. Well, control that urge and read thoroughly what we are going to discuss further in the subsequent section. This will definitely assist you in saving a few bucks.


Most countries are not liberal when it comes to SMS marketing. They have some stringent rules and regulations incorporated which keep us (the marketers) in check.


Well, you might be thinking now rules and regulations for telemarketing are ok but why there is a regulation for SMS marketing? The answer is obvious, and you are aware of it.


Let’s disclose the secret. The answer is of course privacy.



FCC & TCPA

Let’s now understand a little bit about FCC. Federal Communication Commission (FCC) and Telephone Consumer Protection Act (TCPA) talk about the rules and regulations related to express consent.


FCC institutionalized checks under TCPA which states that organizations have to acquire written consent before sending marketing messages or calling people for promotional stuff.

Now the question that might be arising in your mind is do I have to acquire written consent on a piece of paper?

That’s not the case always. Thanks to the administration to make the process a little bit more convenient. Instead of taking a physical signature, you can go for the below options as well.


  • An electronic signature on a website form.

  • An email selecting a designated telephone key.

  • A text message or a recorded verbal agreement.

Additionally, businesses must provide clear and conspicuous disclosure of the following information to obtain express written consent.

  • The specific phone number the consumer is providing consent for.

  • The fact that the consumer is authorizing SMS messages from the business.

  • The types of messages the consumer will receive.

  • The frequency of messages the consumer will receive.

  • Any charges associated with the SMS messages.

  • The consumer's right to revoke consent at any time.



Why Express Written Consent Matters?


Concisely I have jotted down everything that we have discussed till now.


  • Express written consent provides a clear and ambiguous record of an individual’s agreement to receive calls or text messages.

  • Obtaining express written consent requires individuals to provide their written agreement to receive calls or messages, which creates a legally binding record that can be used to prove consent in the event of a dispute.

  • This helps to protect businesses from costly TCPA violations and lawsuits and ensures that consumers are fully informed about the nature of the calls or messages they are receiving.



Express Written Consent and TCPA Guidelines

TCPA sets guidelines and restrictions on how businesses can use automated dialing systems and prerecorded messages for telemarketing and promotional purposes.



Consent

Businesses must acquire customer consent before sending any promotional message. This means that customers must give their consent physically or electronically authorizing the business to contact them.

Example 1: "Reply YES to confirm that you want to receive promotional messages from us. Message & data rates may apply. For help, reply HELP."

Example 2: "To receive our weekly deals and updates, fill out the form on our website and agree to receive text messages."


Opt-Out


Businesses must provide an easy and convenient way to opt out of receiving messages. This includes providing a CTA link like click here to unsubscribe where the consumer can request to stop the services, or the consumer can send the “STOP” keyword in the SMS itself to stop the services.

Example: "Reply STOP to opt-out of receiving future messages."


Time Restriction

A text message campaign is only sent during business hours, from 9 a.m. to 5 p.m. Suppose you are sending someone an SMS marketing message after 5 p.m., that person can sue you in court because of the stringent regulations implemented by the TCPA.



Identification

Businesses must identify themselves in text messages including the name of the company or organization and contact information.

Example 1: "Hello! This is Sarah from XYZ company. You're receiving this text as part of our promotional campaign. Visit our website for more information." Example 2: "Hi there! This is John from the ABC organization. We thought you'd be interested in learning about our new product. Reply YES to learn more."


Do Not Call Registry


If a consumer has requested to be added to the Do Not Call Registry, businesses and marketers are required to stop sending text messages to that number.


To ensure compliance with the Do Not Call List, SMS marketers and businesses should maintain a separate internal Do Not Text List, which includes phone numbers of consumers who have requested not to receive promotional text messages.


When a consumer requests to be added to this list, the marketer should honor the request and immediately stop sending text messages to that number.



How to Obtain Express Written Consent and Stay TCPA Compliant?


01. State the purpose of the content

While asking for consent be upfront, and straight and avoid using any trickery. Clearly state what information that is going to be recorded and for what purpose the details are going to be used.

Example: "We would like to obtain your express written consent to allow us to use your personal information for the purposes of processing your order and delivering the products to you."

02. Use simple language

Avoid using technical jargon and keep your consent form short, sweet & simple. Gain the customer’s trust and you will go much further in your business.

Once you lose their confidence you are doomed forever. So, avoid any technical jargon to avoid any confusion.

Example: "We would like to obtain your express written consent to allow us to use your personal information for the purposes of processing your order and delivering the products to you."



03. Provide a consent form

A consent form is the most common way of collecting information from prospective customers. So, the form should include all the relevant information about the consent and clearly state the purpose of the consent form.


04. Obtain a signature


The person going through the form should sign the form. The signature may not necessarily be physical. It can be digital also.

Example: "Please sign and date this consent form to indicate your agreement to the terms outlined above."


05. Retain a copy of the consent


Keep a copy of the consent in case the regulation authority asks you to showcase the evidence.

The consent must be kept in the national do-not-call register for at least 6 years. The tenure of the rules may vary from country to country so please have confirmation from the regulatory authority.



06. Make the opt-out process uncomplicated.


Make it equally easy for users to opt out of receiving messages. Providing clear instructions for unsubscribing builds goodwill and keeps your practices transparent.



Exceptions For TCPA Rules


Still, there are some exceptions to the rules and regulations. Some of these things will be discussed below.


Implied Consent:

In some cases, some of the consents are based on circumstances and some implied consents can be exempted depending upon the situation.

For example, suppose you purchase some items online and provide your shipping address. In this case, you are implicitly agreeing to the store using your details for future communication of your orders.



Legal Cases:


In case of legal obligations, it may not be always mandatory to acquire express consent. For example, healthcare providers may not require express consent for communicating any information related to treatment.


Tax:

Tax-related communication is also exempted from these regulations.



Conclusion


SMS marketing boasts a high rate of opening rate, thanks to the prevalence of smartphones in people's lives, which occupy a significant portion of their time.


However, with great power comes great responsibility. So, adhering to the rules and regulations of the TCPA can yield significant rewards in the long run.


Trust me! You will save some big bucks dude...


Feel free to express your thoughts in the comment section below.

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