When any purpose of the email is to promote a commercial transaction, then your email will likely be considered Direct Marketing
When is a Marketing email?
Marketing emails are communications that contain any commercial or marketing content or messaging. These are usually sent to contact groups or audiences that are prospects or customers, with the purpose of establishing a commercial relationship. Typical examples include newsletters, promotional emails etc.
What is a Transactional email?
Transactional emails are communications that enables a commercial transaction/relationship. These are usually sent on a one-to-one basis. Typical examples include password reset, order confirmations, receipts, changes to terms of service, and security alerts.
What legal basis do I need to send these emails?
Of the six lawful bases under the GDPR, set out at Art. 6 (1), the most relevant for Transactional emails is Legitimate Interest. This means you do not require Consent as you can rely on the fact that your contacts may reasonably expect you to send them these emails so long as they are necessary and proportionate.
Direct Marketing emails are regulated under GDPR and the ePrivacy Directive (each EEA country's implementation differs slightly). In general Consent is required under ePrivacy to send Marketing emails to your contacts. However, there is an exception to this known as the "soft opt-in", which applies when sending emailing existing customers of the company. For more information check out our blog post here.
To put it quite simply, when any purpose of the email is to promote a commercial transaction then it is a marketing email and the above legal considerations apply.
For example if you send an order confirmation email or receipt to a customer this is a transactional email. However if you include a P.S. with a discount code for their next purchase then this email is no longer considered transactional. In GDPR and Canada’s CASL there’s zero-tolerance for commercial intent; it’s not merely what you consider to be the primary purpose of the message.
Disclaimer: The contents of this article are for informational purposes only, and not for the purpose of providing legal advice. You should contact your legal counsel to obtain advice with respect to any particular issues or problems.