Here’s one way to tell transactional email vs marketing email: have a court slap you for putting what it says is advertising or marketing content in your opt-in confirmation email. This court decision happened inside the EU, however it is also a cautionary tale for anyone in the U.S., or Canada, or really anywhere that has national email marketing laws.
Now, we’ve been saying for years that you need to be careful, and that your email confirmation messages are not the place for advertising. But for those who still want to flirt with legal danger (not to mention spam filter danger), this court decision makes clear that doing so can lead to a legal smackdown. Again, while this court case and decision was decided in Germany, if you are not in the EU and choose to ignore the handwriting on the wall you do so at your own peril.
The Transactional Email vs Marketing Email Question
The court in Germany (link to the original case in German for those of you who read German) had before it this question:
Does a newsletter confirmation email sent as part of the double opt-in procedure which contains more than just a request for confirmation due to the use of the logo and the phrases “Welcome to XXX” and “Do you have any questions about the newsletter? Contact us via: in**@XX*.de” constitute advertising content?
And the court found that yes, in fact it does. The court held specifically that the logo being in the confirmation email is advertising. And that the “Welcome” message with the name of the brand is also advertising.
Said the court, “According to general usage, the term advertising encompasses all measures taken by a company to promote the sale of its products or services. In addition to direct product-related advertising, this also includes indirect sales promotion – for example in the form of image advertising or sponsoring. Advertising is therefore, in accordance with Art. 2 letter a of Directive 2006/113/EC on misleading and comparative advertising, any statement made in the exercise of a trade, craft or freelance profession with the aim of selling goods or providing to promote services.”
The court then concludes “Measured against this broad definition of the term advertising, the disputed confirmation email has an advertising character. Its content goes beyond that of a legitimate, plain transactional email.”
The court also offered this analysis: “This advertising effect is all the greater for an addressee who comes into contact with the defendant for the first time through the confirmation e-mail, since he did not initiate the entry of his e-mail address on the defendant’s website. According to the sense and purpose of the double opt-in procedure, however, such initial contacts cannot be ruled out by the confirmation e-mail. In addition, an abusive generation of confirmation emails, which is actually permissible in itself, can only be stopped if a strict standard is applied to the permissible content of the confirmation email. If no additional advertising is allowed, there is no incentive for misuse.”
In other words, someone entered the plaintiff’s email address on a website (see? It really does happen! It could even have been a spam trap and intentionally entered), and the very first contact that the plaintiff had with the defendant was defendant’s sending the plaintiff an opt-in confirmation. And that opt-in confirmation contained advertising, transmuting what otherwise would have been a transactional email to an unpermitted promotional email.
We recommend that this is a good time to take a moment to review what is in the text of your opt-in confirmation emails, whether you are in the EU or not.