I recently stumbled across a new term for an old idea that is as bad today as it was when I first heard of it (sans catchy moniker) nearly thirteen years ago.

The term is “passive consent”, and it appears in an article by Sherry Chiger published in DIRECT Magazine two weeks ago. The term in this context appears to be the invention of Jay Schwedelson, President and CEO of list firm Worldata, and he uses it to describe a flavor of permission that lies somewhere between confirmed opt-in and opt out.

The classic example of passive consent (and the one used in the article) is the pre-checked subscription box on an on-line form. It’s not entirely clear whether it’s Chiger or Schwedelson who asserts “it’s legitimate,” but Schwedelson applies the “passive consent” description to the practice, since “the consumer does not need to take action in order to be placed on the company’s e-mail file.”

Let’s be clear: “passive consent” is not legitimate. It is “consent” in the same sort of way that the family cat is a mode of transportation. Which is to say that it isn’t. It’s an e-mail oxymoron. Any time a recipient does not need to act to start receiving mail, there is no consent.

The granting of consent must be an informed, affirmative act if it is to be at all meaningful. The check box lets recipients indicate to senders that they understand what kind of mail the sender proposes to send, and that they want to receive it. If the box is pre-checked, there’s no way to know whether the recipient even saw it. It’s impossible to infer with any accuracy exactly why the form was submitted with the pre-checked box still checked.

Chiger is correct when she observes that confirmed opt-in is not the only acceptable standard of permission for sending mail. But senders who build lists using “passive consent” can’t know which kind they have. They may not have any kind of permission at all.