What Makes Consent Evidence Actually Defensible?

The Stakes Are High

TCPA litigation continues to be one of the most active areas of class action lawsuits in the United States. With statutory damages of $500 to $1,500 per violation, even a modest marketing campaign can result in exposure measured in millions of dollars.

When these claims arise, the strength of your defense often comes down to one question: can you prove that the consumer gave proper consent? The answer depends not just on whether you have documentation, but on the quality and completeness of that documentation.

What Courts Look For

Based on case law and practical litigation experience, there are several key elements that strengthen consent evidence:

1. Visual Context

Courts want to see what the consumer actually saw. A database entry showing a checkbox was clicked tells part of the story, but it doesn't show whether the consent language was clear, visible, and proximate to the action. Visual evidence—particularly screenshots that capture the entire page context—provides this crucial context.

2. Precise Timing

When did consent occur? A precise timestamp, ideally with timezone information, establishes the exact moment of consent. This becomes particularly important when there are questions about whether consent was obtained before or after marketing communications began.

3. Technical Verification

IP addresses and geolocation data serve multiple purposes. They help establish that the consent came from a real person (not a bot), and they can corroborate other information about the consumer. They also make it harder for plaintiffs to claim they never visited the site in question.

4. Integrity Assurance

Evidence that could have been altered after the fact carries less weight. Cryptographic attestation—creating a tamper-evident hash of the evidence at the time of capture—provides assurance that what you're presenting is exactly what was captured at the time of consent.

Common Weaknesses

Many consent documentation systems fall short in predictable ways:

• Low resolution or partial captures that don't show the full page context
• Delays in retrieval that slow down your legal response and increase costs
• Incomplete metadata that leaves gaps in the evidentiary record
• Difficult access requiring multiple parties or complex processes to retrieve

Building a Defensible Program

The best time to think about consent evidence is before you need it. A well-designed consent capture program should:

• Capture complete, high-resolution visual records of the consent moment
• Record comprehensive metadata (timestamp, IP, geolocation, custom fields)
• Provide cryptographic attestation for integrity verification
• Enable instant retrieval when evidence is needed
• Support easy sharing with legal teams and partners

The Bottom Line

Defensible consent evidence isn't just about having a record—it's about having the right record, with sufficient detail and integrity to withstand legal scrutiny. The investment in proper documentation pays dividends when claims arise.