Is it legal and advisable to send terms of service emails to unsubscribed users?

Key findings

• Legal ambiguity: The legality of sending TOS updates to unsubscribed users often hinges on whether the email is classified as transactional (service-related) or commercial (marketing). Laws like the CAN-SPAM Act (in the US) and GDPR (in Europe) differentiate between these, but interpretation can be a grey area, especially without clear separate consent for service emails.
• Deliverability impact: Even if legally permissible, sending to unsubscribed or inactive users can severely damage your sender reputation, leading to increased spam complaints, blocklistings (or blacklistings), and reduced inbox placement for all your emails. ISPs closely monitor engagement and complaints.
• Risk to IP warming: Attempting to send such emails during an IP warming period can derail the entire process, as ISPs are particularly sensitive to unusual sending patterns and negative feedback from new IPs.
• User experience: Users who have opted out expect not to receive emails. Violating this expectation, even for legally mandated notices, can lead to frustration, increased spam reports, and a negative perception of your brand.

Key considerations

• Define transactional vs. commercial: Clearly distinguish between emails that are purely service-related (e.g., password resets, purchase confirmations) and those with any promotional content. TOS updates that are truly essential for an ongoing relationship (e.g., account holders) are more likely to be considered transactional, but any hint of marketing content can shift this classification.
• Alternative communication channels: For critical updates like TOS changes, consider using non-email methods for unsubscribed users, such as in-app notifications, website banners, mandatory login pop-ups, or postal mail. These methods do not carry the same deliverability risks.
• Segment your audience carefully: If you must email, segment your audience to only include active users with whom you have an ongoing, demonstrable relationship. Avoid sending to hard bounces, spam complaints, and truly inactive or obsolete addresses at all costs.
• Consult legal counsel: Always seek specific legal advice tailored to your business, audience, and the nature of the TOS changes, especially for global operations. Legal interpretations of transactional vs. commercial emails can vary significantly by region.

Key opinions

• Deliverability over legality: Many marketers assert that even if there's a perceived legal obligation, the damage to email deliverability outweighs the potential legal protections, especially given the fragility of sender reputation.
• Bad idea: The common sentiment is that sending to unsubscribed users, even for transactional messages, is generally a bad idea that risks spam complaints and damage to email program health.
• Distinguish email types: Some believe that if there's a clear separation between marketing and service emails with distinct consent, TOS updates could go to the service segment. However, this relies on very specific consent practices.
• Avoid defunct addresses: There's strong agreement that sending to old, obsolete, or non-working email addresses is counterproductive and harmful to deliverability. Such practices increase hard bounces and can trigger spam traps.

Key considerations

• Prioritize reputation: Marketers must advocate strongly for protecting sender reputation, even when facing internal pressure to comply with broad legal interpretations that could harm email deliverability. The long-term health of the email program should be the priority.
• Implement multi-level opt-out: Consider maintaining different levels of opt-out, such as marketing-only and an all-communications opt-out, to manage transactional emails more effectively. This allows for sending essential service updates while respecting marketing unsubscribe preferences.
• Stagger deployments: If a large-scale transactional send to a broad audience is unavoidable, try to stagger the deployment over time to avoid sudden volume spikes that ISPs might view suspiciously. Spreading out the send can mitigate negative impact on domain and IP reputation.
• Use data to convince: Collect and present data on increased bounce rates, spam complaints, and drops in deliverability to internal stakeholders to demonstrate the real-world impact of problematic sending practices. This data can be crucial in shifting internal policies.

Key opinions

• Reputation is paramount: Deliverability experts consistently warn that a TOS update is rarely worth the risk of ruining an email reputation. Maintaining a good reputation with ISPs is critical for overall program success.
• Transaction vs. commercial: The key distinction lies in whether the message is purely service/relationship-oriented or contains any commercial content. Only truly non-commercial, essential service messages may have a legal carve-out, but even then, it's risky for deliverability.
• Legal advice vs. practical reality: Even if in-house counsel advises such sends are legal, experts caution that legal interpretations often do not align with the strict requirements of ISPs and the realities of inbox placement. The business bears the risk of deliverability damage.
• Avoid bad data: Sending to obsolete or non-working email addresses is deemed illogical and highly detrimental. This practice guarantees hard bounces, which negatively impact sender scores.

Key considerations

• Understand ongoing relationships: For messages to be considered transactional, there must be a demonstrable ongoing commercial relationship with the recipient. TOS changes for users without such a relationship should not be sent via email after an unsubscribe.
• Leverage industry best practices: Refer to guidelines like the M3AAWG Sending Mandated Emails Best Practices document (like this one) for authoritative guidance on handling essential non-commercial communications.
• Consider deliverability consequences: Recognize that even a legally compliant send that generates high complaints or bounces will negatively impact your email deliverability rates and could lead to blocklistings (or blacklistings).
• Advocate for alternatives: Strongly recommend and implement alternative communication methods for TOS updates to unsubscribed users, such as in-app messages or website banners, to avoid email reputation pitfalls.

Key findings

• Primary purpose test: The CAN-SPAM Act defines transactional or relationship messages as those whose primary purpose is to facilitate an already agreed-upon transaction or provide an update about an ongoing commercial relationship, rather than advertising or promoting a product or service. This is critical for determining if an unsubscribe is required.
• Mandatory unsubscribe: Most anti-spam laws, including CAN-SPAM and GDPR, mandate that commercial emails include a clear and conspicuous unsubscribe mechanism that is functional for at least 30 days. Failure to provide or honor this link is a violation.
• Ongoing relationship criteria: For transactional emails to be exempt from unsubscribe requirements, they typically must relate to a subscription, membership, account, loan, or similar ongoing commercial relationship where the recipient is actively using or purchasing services from the sender.
• Global compliance complexity: While general principles exist, specific requirements for opt-out and transactional exemptions can vary by country (e.g., CASL in Canada, GDPR in the EU). Global audiences necessitate understanding multiple legal frameworks for unsubscribe timeframes.

Key considerations

• Strictly non-commercial content: Ensure that TOS update emails contain absolutely no promotional content, advertising, or marketing appeals. Even small additions can reclassify the email as commercial, requiring an unsubscribe link and adherence to opt-out requests.
• Honoring unsubscribe requests: Regardless of classification, best practices for email unsubscribes dictate respecting user preferences. Even if an email is legally transactional, if it triggers spam complaints from users who feel they've opted out, it indicates a poor user experience and potential deliverability issues.
• Clear and conspicuous: If an unsubscribe link is legally required for your email, it must be easy for recipients to find and use. Ambiguous or hidden unsubscribe options are non-compliant and can lead to penalties (e.g., related to two-click unsubscribes).
• Recipient's active relationship: Documentation often implies that transactional emails are appropriate for recipients actively engaged in a product or service. Sending to truly inactive or closed accounts, even for TOS, is unlikely to fit the spirit of these exemptions.