Placement of Consent Language in Online Forms Integral to TCPA Compliance

In today’s digital world, more and more businesses are using online forms to generate leads for telemarketing and text campaigns. In attempting to comply with the TCPA’s written consent requirements, most marketers and lead generators have added some type of consent language to their lead forms. A recent decision by the Northern District of Illinois, however, underscores that the placement and overall conspicuousness of consent language is just as important as the actual verbiage.

The class action lawsuit, Sullivan v. All Web Leads, Inc., involves autodialed calls made to consumers that completed a lead form related to health insurance. Consumers were asked to provide personal information, including phone number, and click a “Submit” button. The form contained language that purportedly authorized autodialed calls and text messages to those consumers; therefore, the defendant filed a motion to dismiss the case. The court, however, noted that: (1) the language was placed in small print at the bottom of the page; and (2) the form did not otherwise put consumers on notice that they would be called or direct them to the detailed consent terms. Given such facts, the court determined that it could not rule, as a matter of law, that the form provided “reasonable notice” of the consent terms (the standard used for other online contracts), much less “clear and conspicuous” notice of the terms (the standard required by the TCPA). Accordingly, it denied the defendant’s motion to dismiss.

Although the opinion is not a decision on the merits, it highlights the importance of using conspicuous consent language and disclosures in connection with online lead forms. While the court did not definitively hold that consent language can never be below the Submit button, it demonstrates that such forms will be heavily scrutinized. Businesses using online forms to generate leads for telephone and text campaigns should carefully review each form – including those hosted by third party lead generators – to ensure they provide valid written consent for such communications. As highlighted by Sullivan, both the conspicuousness and content of the consent language are critical.

Another interesting aspect of the opinion is that the court considered whether the limited exemption for certain health care messages (subject to HIPAA) applied to the defendant’s calls. It held that the exemption did not apply because the calls: (1) were made to offer insurance, not to communicate a message related to the consumer’s health care; and (2) were not made by or on behalf of a health care provider in the context of an established health care treatment relationship.

M&S will continue to monitor this and other TCPA cases to provide relevant updates and insight on the developments that impact businesses engaged in direct-to-consumer marketing.