Summary
Sending terms of service (TOS) emails to unsubscribed users is generally discouraged due to legal risks and potential damage to email deliverability and sender reputation. While TOS updates might be considered transactional or service-related messages, anti-spam laws like GDPR and CAN-SPAM often require consent and honoring unsubscribe requests. Sending emails to unsubscribed users can lead to legal issues, increased spam complaints, and dropped domain/IP reputation. Experts recommend segmenting email lists, respecting user preferences, and exploring alternative communication channels like web banners. Legal consultation is crucial to ensure compliance.
Key findings
- Legality Concerns: Sending emails to unsubscribed users may violate anti-spam laws like GDPR and CAN-SPAM, potentially resulting in legal consequences.
- Deliverability Risks: Emailing unsubscribed users can damage sender reputation, leading to decreased deliverability, increased spam complaints, and blacklisting.
- Alternative Communication: Alternative communication channels (e.g., website banners) can be effective for notifying users of TOS updates without risking legal or deliverability issues.
- Segmentation Importance: Properly segmenting email lists and honoring user preferences are critical for maintaining a good sender reputation and avoiding penalties.
- Employee liability: Employees following legal instruction do not have civil liability.
Key considerations
- Jurisdictional Differences: Legal implications vary based on jurisdiction and applicable anti-spam laws; consult with legal counsel to ensure compliance.
- Type of Service: Consider the nature of the service and the user's relationship with it when determining the necessity and legality of sending mandated emails.
- Data Privacy: Adhere to data privacy regulations, respecting user consent and unsubscribe requests.
- Compelling Legitimate Interest: Under GDPR, determine if a 'compelling legitimate interest' exists to override unsubscription rights; this is a high legal standard.
- List Management: Implement robust list management practices to maintain clean and engaged email lists.
What email marketers say
13 marketer opinions
Sending terms of service (TOS) emails to unsubscribed users is generally considered risky and potentially illegal. While TOS updates might seem like transactional emails, many anti-spam laws like GDPR and CAN-SPAM require consent and honoring unsubscribe requests. Emailing unsubscribed users can lead to legal issues, damaged sender reputation, increased spam complaints, and dropped domain/IP reputation. Best practices involve using alternative communication channels like web banners or limiting TOS emails to paying subscribers. Always consult with legal counsel to ensure compliance with specific regulations.
Key opinions
- Legality: Sending emails to unsubscribed users can violate anti-spam laws like GDPR and CAN-SPAM, potentially leading to legal repercussions.
- Sender Reputation: Emailing unsubscribed users can damage sender reputation, leading to decreased deliverability and increased spam complaints.
- Alternative Channels: Consider using alternative communication channels like web banners to notify users of TOS updates without emailing unsubscribed individuals.
- Transactional vs. Marketing: While TOS updates might be considered transactional, they are still subject to anti-spam laws and require careful consideration.
- Personal legal risk: Following legal advice doesn't always negate personal legal risk as an employee.
Key considerations
- Jurisdiction: Legal implications vary depending on the jurisdiction and applicable anti-spam laws.
- List Segmentation: Carefully segment your email list and consider limiting TOS updates to active or paying subscribers.
- Legal Consultation: Consult with legal counsel to ensure compliance with specific regulations and assess the risks associated with emailing unsubscribed users.
- Data Privacy: Ensure practices align with data privacy requirements.
- Impact Assessment: Weigh damage to sender reputation with sending needed information.
Marketer view
Email marketer from Email Geeks shares that sending illegal emails can lead to personal legal issues, even if following legal advice.
12 Mar 2023 - Email Geeks
Marketer view
Email marketer from Reddit says that it depends on the jurisdiction and the nature of the service but generally advises against it due to potential legal issues and damage to sender reputation, advising to consult with legal counsel.
28 Aug 2024 - Reddit
What the experts say
6 expert opinions
Experts suggest that while sending terms of service (TOS) emails to unsubscribed users might be legally permissible in some cases, the potential damage to email deliverability and sender reputation is a significant concern. TOS updates can sometimes be considered service-related messages, but it's generally not advisable to send them to users who have opted out of all communications. Focus on the potential harm to the business and communicate those concerns effectively. Separating your email list into different categories of subscribers helps in respecting user preferences and avoiding blacklisting.
Key opinions
- Deliverability Impact: The primary concern is the potential damage to email deliverability and sender reputation, outweighing legal considerations.
- Service-Related Messages: TOS updates can sometimes be classified as service-related, potentially allowing them to be sent to unsubscribed users, but this is a risky practice.
- Employee Liability: Individual employees are typically not liable for following instructions from management and legal counsel, shifting the focus to the business impact.
- Subscriber Segmentation: Properly segmenting email lists and respecting user preferences is crucial for avoiding blacklisting and maintaining a good sender reputation.
Key considerations
- Communication of Concerns: Effectively communicate potential harm to the business when instructed to send TOS emails to unsubscribed users.
- Type of Service: Consider the type of service and the user's relationship with it when determining whether to send mandated emails.
- User Preferences: Always respect the customer's decision regarding email preferences, especially those who have opted out of all communications.
- Long-Term Impact: Acknowledge that even a one-time mailing to unsubscribed users may not have a substantial *long-term* effect, but the potential for *short-term* negative impacts remains.
Expert view
Expert from Word to the Wise recommends separating your email list into different categories of subscriber such as 'All marketing', 'Transactional', 'I don't want any emails at all'. You should always respect the customers decision, so if someone is on 'I don't want any emails at all' do not email them anything, or you run the risk of being blacklisted.
11 Jan 2025 - Word to the Wise
Expert view
Expert from Word to the Wise explains that sending mandated emails to those who have unsubscribed is tricky because these emails don't include marketing so are permitted, but there are a lot of things to consider such as the type of service and the users relationship with it.
15 Oct 2024 - Word to the Wise
What the documentation says
3 technical articles
Documentation from M3AAWG, FTC, and GDPR sources suggests caution when sending terms of service (TOS) emails to unsubscribed users. While M3AAWG acknowledges that mandated emails differ from marketing emails, neither explicitly permits emailing those who have unsubscribed. The FTC's CAN-SPAM Act implies that even transactional messages require an opt-out. GDPR emphasizes ceasing data processing after unsubscription, making sending TOS emails a potential violation.
Key findings
- Mandated Emails: M3AAWG acknowledges mandated emails (like TOS updates) are different, but doesn't explicitly allow sending to unsubscribed users.
- CAN-SPAM Compliance: FTC's CAN-SPAM Act implies even transactional/relationship messages require an opt-out mechanism, making TOS sends to unsubscribed users potentially non-compliant.
- GDPR Restrictions: GDPR dictates data processing cessation upon unsubscription, suggesting TOS emails to unsubscribed users would violate the regulation unless a compelling legitimate interest overrides.
Key considerations
- Legal Review: Carefully review applicable laws like CAN-SPAM and GDPR.
- Alternative Communication: Explore alternative communication methods for TOS updates if possible (e.g., website banners).
- Legitimate Interest: Determine if a 'compelling legitimate interest' exists to override unsubscription rights under GDPR; this is a high bar to meet.
Technical article
Documentation from GDPR explains that data processing should cease after a user unsubscribes, unless there's a compelling legitimate interest that overrides the individual's rights, suggesting that sending TOS emails would likely violate GDPR.
6 Aug 2021 - GDPR.eu
Technical article
Documentation from FTC.gov details the CAN-SPAM Act, indicating that even transactional or relationship messages must comply with certain provisions, like including an opt-out mechanism, implying that sending TOS emails to unsubscribed users could violate the law.
22 Oct 2023 - FTC.gov
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