The Controversy Surrounding Negative Option Opt-Out

I’ve noticed an increase in one of the more controversial methods of building lists for email marketing. If it were being used (as in the past) by a few marginal organizations, I wouldn’t be surprised. What surprises me, though, is that recently some large, respectable companies have started doing it. The model they are using is what I call “negative option” but what many refer to as “opt-out” or “double opt-out.”

Here’s how it works: A marketer has a list of email addresses but does not have permission to send third-party promotions. To obtain permission, the marketer sends one email (in the case of double opt-out, two emails) stating its intention to send future third-party emails. If the recipient does not respond (negative option), the marketer assumes the recipient has granted permission. It then begins sending to the list — and renting the names to others.

Proponents’ Case

Proponents of this approach tell you that as long as the email address is publicly available (on a business card or in an industry directory) and all future emails include an option to unsubscribe, this approach to gathering permission is acceptable. Some say that a pre-existing relationship (visit to a trade show booth, receipt of a company publication) automatically bestows third-party permission. Sending that initial email is only a courtesy.

Proponents present low “remove me from your list” response rates from these campaigns as proof that people are OK with the negative option. A marketer I spoke with uses select quotes from Seth Godin’s “Permission Marketing” to validate this model and describes the resulting lists as permission-based or “permission-cleansed.” Marketers make $3 to $5 per name annually when they put these lists on the market.

The Opposition’s Argument

Those opposed see things differently. For them, the most controversial part of the model is the assumption that a recipient’s silence equals permission. They point out that many people don’t open every piece of email they receive, so they may not see the negative option message. The low response rate is cited as evidence. When presented with an opt-out that can’t be missed (such as on a registration page), the response rate is usually around 15 percent. Comparing this to a low single-digit rate when an opt-out is offered via a negative option suggests that some recipients miss the opt-out email.

Opponents take issue with the assumptions made about public email addresses, unsubscribe links, and pre-existing relationships, believing that in these cases an explicit opt-in is required. Although negative option is legal in the United States, it is not in some European countries.

Opponents also find the terminology troubling. They believe the definition of “opt-out” does not include a negative option approach. “Double opt-out” and “permission-cleansed” are viewed as a bit sleazy, just attempts to play off common permission marketing terms to legitimize this model.

A Practical Approach

Rather than delve into theory, let’s draw on experience and some common principles of email marketing to guide us.

Opt-in lists draw better response. Try using a list created via a negative option campaign versus one that is opt-in. You’ll see:

  • Lower open rates. People are less likely to open an email they haven’t specifically asked to receive
  • Lower click-through rates. If they aren’t opening it, they aren’t clicking on links (and even if they do open it, once they realize it’s something they didn’t ask for, they are more likely to abandon it).

You get a halo effect when you associate your product/service with a company the recipient has a positive relationship with. Conversely, by associating yourself with a company that did not build that relationship via opt-in, you will see guilt by association. It will reflect badly on your organization to mail to these types of lists.


In the rush to optimize email marketing and obtain short-term gain, companies are forgetting that the basis of email marketing is trust. Increasing list quantity in this way negatively impacts quality. If you’re buying a list, make sure it wasn’t created via negative option opt-out. If you work with a company that does negative option campaigns, know that you are jeopardizing the long-term viability of the list and your company’s reputation for short-term gain.

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