A ticked sign-up box grows the list and shrinks what the list is worth. For text messages it also creates legal risk that no list size justifies.
The email box at checkout is the default brands defend hardest. The case for ticking it is list size. The case against is what a list is for: people who read what you send.
In the US, CAN-SPAM is an opt-out law. You can email customers who didn’t ask, as long as every message carries a working unsubscribe that you honor within 10 business days Published. So a ticked email box at checkout is generally lawful for US customers. In the EU it isn’t a form of consent at all. The GDPR’s recitals say that “silence, pre-ticked boxes or inactivity should not therefore constitute consent” Published, and in the 2019 Planet49 case the EU’s top court ruled that a pre-ticked checkbox is not valid consent Published.
Lawful isn’t useful. Subscribers who never chose you tend to complain more, and complaints are what mailbox providers watch when deciding whether you reach the inbox (The Whole Machine covers deliverability). Say a ticked box adds 4,000 subscribers a month and an unticked one adds 2,500. If the extra 1,500 mark you as spam at several times the others’ rate, the list grows and your reach shrinks. Tag subscribers by source and compare 30-day clicks, unsubscribes and complaints before you argue about it.
Text messages are different in kind. Under the Telephone Consumer Protection Act rules, marketing texts sent with automated systems need the customer’s “prior express written consent”: a signed agreement, which can be electronic, that clearly authorizes the messages and tells the customer they don’t have to agree as a condition of buying anything Published. A pre-ticked box, or SMS consent folded into the email box, is a weak way to show that. Customers can revoke “by using any reasonable method,” honored within 10 business days Published. Give SMS its own unticked box and disclosure, and have counsel review it.
A list is worth what its readers would pay to stay on it. Nobody pays for a box they didn’t tick.
An unticked box needs a reason about the customer. Weak: “Sign up for news and offers.” Better: “Email me when it’s time to reorder, and when you restock the 8-ounce.” Whoever ticks that has told you what they want.
This is one chapter of The Free Choice, which is free and readable in full on a single page with no form in front of it.