Is “opt-out” always wrong? The Wall Street Journal doesn’t think so

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By Christopher Elliott

Is pre-checking the box on an online transaction always unethical? The answer to that question seemed obvious after the federal government weighed in on the issue, declaring it an “unfair and deceptive” practice, and the state of Minnesota fined two insurance companies for opt-out violations.

I wrote about both of these developments in a recent Washington Post column. A related poll on my site suggested a vast majority of readers thought opt-out should never be used, under any circumstances.

So you can imagine my surprise when I heard from Steve Steinberg, a Wall Street Journal subscriber.

Unethical defaults

“Typically when you go on vacation, you put a hold on your newspaper,” he says. “When you come back you restart your papers — and you get a credit for those issues you missed and your subscription is extended.”

But not when you suspend your Journal subscription.

Someone found a new way to take a little extra money from the person taking that vacation.

Starting apparently this month, when you go online to put a hold on The Wall Street Journal, the little box at the bottom to “donate” your held papers box is now being checked as a default.

In the past it was an option but not defaulted. I imagine this ends up making extra money by avoid extending people’s subscriptions — without telling anyone the box is being defaulted to “donate” your papers.

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This is just plain wrong and an example of how large corporations figure you will not notice a small change and take advantage of people. We have seen this before on travel websites where after you buy your tickets or reservation the “optional box” to buy extra services is “already checked for your convenience” but this is a new one: try to take advantage of people even before they leave the house for vacation.

As a former Dow Jones employee, I didn’t believe it. (News Corp. owns Dow Jones, which publishes The Wall Street Journal.) I know from personal experience that the company takes ethics seriously. It has a code of conduct that all employees must sign, which asserts that its reputation for business integrity is “the heart and soul” of its enterprise. (Related: These are the worst travel mistakes you can make.)

Then Steinberg showed me screenshots (above) of the pre-checked box.

Ethical dilemmas in subscription practices

I thought I’d take a quick look at the Code of Federal Regulations to make sure I didn’t misread the government’s position on opt-out sales. Here’s the rule:

(c) When offering a ticket for purchase by a consumer, for passenger air transportation or for a tour (i.e., a combination of air transportation and ground or cruise accommodations) or tour component (e.g., a hotel stay) that must be purchased with air transportation, a direct air carrier, indirect air carrier, an agent of either, or a ticket agent, may not offer additional optional services in connection with air transportation, a tour, or tour component whereby the optional service is automatically added to the consumer’s purchase if the consumer takes no other action, i.e., if the consumer does not opt out.

The consumer must affirmatively “opt in” (i.e., agree) to such a service and the fee for it before that fee is added to the total price for the air transportation-related purchase. The Department considers the use of “opt-out” provisions to be an unfair and deceptive practice in violation of 49 U.S.C. 41712.

No mention of newspapers, but there’s a precedent—one any ethically conscious company should be aware of.

My advocacy team and I asked Dow Jones about Steinberg’s problem. A representative responded,

[The box] is checked by default as we are trying to increase distribution of The Wall Street Journal Classroom Edition to high school students. We currently serve student readers in more than 6,000 classrooms across the country through the program. Our subscribers are welcome to uncheck it if they prefer.

Seriously? I know that there are some troubling ways the TSA punishes passengers who opt-out.

Even if the pre-checking was done for a good cause — which a donation to the Journal’s classroom edition undoubtedly is — does the end justify the means? (Here’s how to handle the TSA when you are traveling.)

I’ve held this story for almost two weeks, hoping for a follow-up from my former employer. Something to the effect of, “We’ve had a change of heart and we’re unchecking the box.” But no one contacted me. (Here’s our guide to EC 261and European air travel rights in 2023.)

I’m disappointed. Given News Corp.’s recent issues, I expected The Wall Street Journal to go to great lengths to avoid any appearance of unethical business practices.

Then again, maybe these pre-checked boxes aren’t always wrong, particularly when they’re supporting a charitable cause. Or are they?

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Christopher Elliott

Christopher Elliott is the founder of Elliott Advocacy, a 501(c)(3) nonprofit organization that empowers consumers to solve their problems and helps those who can't. He's the author of numerous books on consumer advocacy and writes three nationally syndicated columns. He also publishes the Elliott Report, a news site for consumers, and Elliott Confidential, a critically acclaimed newsletter about customer service. If you have a consumer problem you can't solve, contact him directly through his advocacy website. You can also follow him on X, Facebook, and LinkedIn, or sign up for his daily newsletter. He is based in Panamá City.

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