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How to Best Document and Preserve Express Written Consent

In May, we started a compliance series around what you should do before adding SMS to your marketing mix. We went over rules, regulations, best practices, and finally, what your opt-in message should look like. Now we’re wrapping things up with the next step: what’s the best way to document, preserve, and store SMS opt-in agreement information?

There aren’t many options for capturing express written consent: you can either do it yourself or use third-party tools. But before we get into that, let’s discuss why it’s essential to keep records.

Why Should I Keep Opt-In Records?

The “why,” in this case, is super easy — lawsuits aren’t fun. In 2015, Bloomingdales was sued for texting members of their loyalty program (DNC). The problem with this message was that the customers hadn’t given express written consent to receive text messages in the first place, and the result was a $1.4 million settlement. Their opt-in messaging was scrutinized and picked apart during the trial, and they had to show the exact wording used before the message was sent.

So, what lesson can we learn from this case? Some companies tend to update their websites and forms more often than others, but if they were involved in a lawsuit, they might need to potentially produce a visual of what their opt-in page looked like at a specific time. As we discussed in our last compliance blog, even the design can be scrutinized. Since you’ll have to keep records to defend yourself against a possible lawsuit, let’s see how you might do so.

Option 1: DIY

Capturing express written consent by yourself means keeping track of what your opt-in page looked like, and the language used every time the page was updated. Even if you’re incredibly organized, this process is more complicated than creating a detailed folder system with dates and careful documentation of what was accepted and when. You’ll also have be able to authenticate your records.

If you have a dedicated team, you might even consider doing it in-house. However, if you’re more inclined to the chaos of having 30 “New Folders” with “Document 1-30” on your desktop, you might be better suited working with a third-party tool.

Option 2: Third-Party Tools

Third-Party tools like ActiveProspect and Jornaya do more than give you insight into your audience’s journey — they can also document, preserve, and record that journey. This way, you can have powerful insight into your audience’s experience and capture any opt-in messages or express written consent to which they agree. This can be highly beneficial, especially if you need to produce what your website looked like when a particular audience member opted into communications.

Let’s take a closer look at our two examples and what they do (regarding consent documentation and preservation).

These are best-in-class platforms in our industry and are trusted by most enterprises out there.

  • Jornaya
    • Jornaya helps users keep a verified record of every web session through visual rendering technology and captures each consumer’s preferences in accordance with TCPA, CCPA, and future privacy laws.
  • ActiveProspect
    • ActiveProspect empowers companies across industries to take real-time action on their leads, protect themselves from litigation by documenting proof of consent, and save money by providing new levels of data insights and control.

Implementing SMS

It might have been a bit of an understatement to say, “Think adding SMS to your sales funnel is as easy as sending a text to a friend,” in our first blog. It’s not an easy process, and it requires a lot of research, planning, record keeping, and attention to detail before you send your first text message. We’ve spent hours working with the Czar of TCPAWorld.com (and our Regulatory Attorney), Eric Troutman of Squire Patton Boggs, on these blogs, and we’re sure you’ve noticed that we haven’t even talked about sending a text yet.

But when you are finally ready to send your first text message, make sure you partner with someone experienced who understands the complexities of texting. Drips can work with you when it’s time to reach out to your audience, whether you’re texting hundreds or thousands of people.

Want to see what Drips can do for you?

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Disclaimer: This blog and all information contained in it does not, nor is it intended to, constitute legal advice; instead, all information and content herein is for educational and informational purposes only. Information in this blog may not constitute the most up-to-date information, and Drips, the writers of this blog, and any contributors or contributing law firms herein disclaim any obligations relating to the timeliness or accuracy of the information contained here. No warranties should be implied. All liability with respect to any actions taken or not based on the contents of this blog is expressly disclaimed. Readers should consult with an attorney to obtain advice with respect to any particular legal manner, and no reader should act or refrain from acting on the basis of information on this blog without first seeking legal advice from counsel in the relevant jurisdiction. 

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