More often than not companies are realizing that they have a consumer provide her information after she has previously opted-out of marketing. For example, a company collects contact information online, sends a consumer email marketing its services, and she opts-out of further email marketing by following the “opt-out” procedures in that email. Six months later the same consumer participates in a survey sponsored by the same company, the terms of which state that by participating in the survey the consumer consents to receive further marketing communications from the company. Is the company bound by the prior opt-out by the consumer, or does her participation in the survey under the rules permitting marketing override the original opt-out?
There is no one size fits all answer to the above situation. Undoubtedly the company would be in a much better position if there is an unpopulated checkbox on the survey asking the consumer if she would like to receive future marketing. In that case, there is an affirmative act by the consumer that almost certainly revokes the prior opt-out.
If your company finds itself in a situation where it is receiving a consumer’s information repeatedly, or it is reasonably likely that scenario could arise, speak with you privacy counsel to discuss your options and the risks associated with each such option. Planning this scenario in advance will provide your company with much greater flexibility when and if the issue arises.