Q: Is “opt out” a requirement or a best practices kind of thing? We regularly solicit our satisfied clients for donations. But, I’m wondering if we should be protecting ourselves by having people sign something when they first come in for services that would ensure that such solicitations would be welcome.


A:  The concept of “opt out” – and “opt in” – is that people should have a say in the communications that they receive. What you suggest above – that you ask people for their permission to send them information or requests for solicitation before you ever do – is actually “opt in.” This is a best practice, though some of your vendors, such as your contact and donation management companies, may require it, “Opt in” is the higher bar, requiring that you can prove that people want to hear from you.

“Opt out” means that if someone does not want – or no longer wishes – to receive information from your organization, he or she can ask you to stop sending all or specified communications and you will honor that request.  In some cases “opt out” is a requirement. In others, it’s a best practice. Let’s look at when each situation applies.

Emails, including your newsletters, action alerts and solicitations, are subject to the CAN-Spam Act of 2003. The Act requires that you provide people with an easy, clear and conspicuous way to opt out, even if they’ve previously opted in. If someone opts out, their wishes must be honored within 10 days.

If you are faxing stakeholders, the guidelines are determined by what you are sending. If it is an advertisement, for instance you are soliciting ads for a journal, you must provide information on the face of the fax indicating how someone can opt out. This can be a phone number, fax number or URL that the recipient can contact at any time – 24 hours a day, 365 days a year – and you must honor the request to remove their fax number from your database within 30 days. There are services that you can employ to facilitate this requirement. If, however, you are soliciting for funds from or sharing educational material with stakeholders, your organization is exempted from providing the opportunity to opt out as long as it is a bona fide nonprofit.

Direct mail is another media in which the type of information you are sending dictates how you must handle “opt out.” Your organization is ethically responsible for meeting the stipulations set out in the Direct Marketing Association’s (DMA) 2008 Commitment to Consumer Choice, which requires that nonprofits offer donors the chance to opt out of receiving any future solicitation mailings. As was true with faxes, your organization may determine its own mechanism by which a stakeholder can do this, such as providing a place on your website for indicating this choice, providing an 800 number to call or using something as simple as a check-off box on a return mailer. The Commitment to Consumer Choice specifically does not cover such mailings as acknowledgements, newsletters or informational materials, however. So, you can send these at will.

Contact via the telephone is a totally different animal. As a nonprofit you are given a free pass to contact any stakeholder you wish. Nonprofits are specifically exempt from checking their databases against the “Do Not Call” lists, where consumers are otherwise able to opt out of unwanted phone solicitations.

What will be interesting is to see what happens as some of our newest communication methods such as text messaging, organization-specific apps, QR codes, and location-based marketing take hold. In March 2011 the US District Court in Northern California ruled that the Can-Spam Act applies to Facebook. So, if you are employing these techniques, you might consider “opt out” as a best practice.

As always, please note that this should not be interpreted as legal advice.