Last week we wrote about the complexities of express written consent as part of a blog series collaboration with the go-to TCPA professional, our Regulatory Attorney, Eric Troutman of Squire Patton Boggs.
Is your audience ready to start receiving SMS from you? The best practice is to gather appropriate consent depending on the type of system and channels you are using, with TCPA’s “prior express written consent” being the highest level.
But what makes a good/valid TCPA express written consent disclosure? Interestingly enough, both the content AND design will determine how your disclosure stands up. Fortunately, Eric Troutman is here to provide his expertise.
“When obtaining proper express written consent both the content of the disclosure and the format of the webpage matter. Courts take a holistic view of the consumer’s experience with the website to assess consent—and even well-worded disclosures may be defeated if the consumer’s expectations are defeated by the website’s design.”
Anatomy of a Valid TCPA Express Written Consent Disclosure
Eric was nice enough to provide us with a sample of what a TCPA-approved written consent disclosure looks like from a content perspective (more on design later). Take a look:
- Clear articulation of how consent agreement is to be “signed” by consumer
- “Seller” must be specifically identified
- If third parties will be making calls, the disclosure must state this
- The word “marketing” or “promotion” MUST appear
- Should mention texts or SMS if texts will be sent
- Use of an ATDS MUST be mentioned
- Use of prerecorded/artificial voices must be mentioned if used
- Should limit the scope to the specific subject matter
- Must state that consent is not required as a condition of good or service
Why It’s Essential To Spend Time on Your Disclosures
In 2020 a concerning trend started to surface involving numerous court cases where the court refused to enforce online disclosures. The courts are applying a holistic approach emphasizing whether a consumer is genuinely likely to understand they are accepting terms and conditions when submitting a web form. Here’s how Eric interprets it:
“The court is looking at every element to see if there are affirmative acts of deception or things that distract from a disclosure. If there are confirmations that make it seem like they’re not being informed, the courts won’t enforce it. So, the question you have to ask yourself is: How confident are you that the consumer knew what they were doing when they ‘agreed’ to a disclosure?”
With that in mind, here are some general things to think about when drafting disclosures:
- The disclosure must be close to the acceptance button—while “above the button” is not necessarily required, it is preferred.
- Hyperlinks must be obvious and underlined or capitalized.
- The disclosure must be in readable font—both in terms of size and color against the background.
- The website should not be cluttered or otherwise full of impertinent language in different font sizes and colors that might distract from the disclosure.
- Disclosure should actually and clearly explain that by clicking the button, the customer will be accepting the disclosure.
- The disclosure must be apparent at the time the user clicks the submit button, and it cannot pop up only before or after the button is presented.
Think the text is all that matters in a written consent disclosure? The design plays a huge part in it too, and the court will scrutinize a website to determine if the design reduced the impact or otherwise minimized the disclosure.
Let’s look at common issues and court cases that found the design obscured or problematic.
The Proximity of the Disclosure to the Acceptance Button
- Arnaud v. Doctor’s Assocs., No. 19-3057-cv, 821 F. App’x 54 (2nd Cir. 2020)
- Finding: “reasonable user would not find the terms and conditions link contained on the page to be conspicuous, since the link was at the bottom of the page, in relatively small font, and was introduced by no language other than the shorthand ‘T & Cs’”.
The Consumer Must Plainly Understand Clicking a Button is Accepting the Terms
- Berman v. Freedom Fin. Network, Case No. 18-cv-01060-YGR, 2020 U.S. Dist. LEXIS 160406 (N.D. Cal. Sept. 1, 2020)
- Finding: the website layout did not afford conspicuous notice to the consumer because there was no above-the-button language notifying the consumer that they were accepting disclosures by clicking the button.
The Site Must Clearly State That Terms Are Being Accepted
- Soliman v. Subway Franchisee Adver. Fund, No. 3:19-cv-00592 (JAM), 2020 U.S. Dist. LEXIS 38183 (D. Conn. Mar. 5, 2020)
- Finding: The page “actively” took attention away from terms and conditions at the bottom of the page. The page did not specify that the consumer was accepting the hyperlinked terms and conditions.
Cluttered Pages Are a Bad Idea
- Shultz v. Ttac Publ, Case No. 20-cv-04375-HSG, 2020 U.S. Dist. LEXIS 198834 (N.D. Cal. Oct. 26, 2020)
- Findings The hyperlink was not visible, a distracting video was playing, promotional material was present, and big green checkmarks on the page obscured the importance of the hyperlink.
Make sure your written consent disclosure will hold up in court before you start texting your audience. It may take some additional time to prepare things, but it’ll probably cost less in the long run compared to the alternative of going to court.
Ready to partner with industry experts who understand the complexities of SMS marketing now? Work with Drips!
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