When is it okay to send an email without an unsubscribe link?

When it comes to email unsubscribe laws, specifically the CAN-SPAM Act, a common question arises: “When can you send an email without including an unsubscribe link?” 

Here at Customer.io, we aim to help you adhere to all email laws and industry best practices. Beyond legal compliance, we want you to send emails that recipients want to receive. That’s better for you and better for your audience.

The complexity surrounding unsubscribe links in emails is quite understandable. A fundamental understanding of CAN-SPAM regulations is essential to navigate this landscape effectively, especially if your audience is in the United States.

It’s worth noting that if you’re a US-based company reaching out to recipients in Canada, CAN-SPAM doesn’t apply at all. Instead, you should turn your attention to CASL (Canada’s Anti-Spam Legislation). Spam laws often hinge on the recipient’s location rather than the sender’s. As we’ll cover in more detail further down, industry best practices are often far more stringent than the legal limitations of email.

This is going to be fun. Let’s dig in.

1. What exactly are anti-spam and data protection laws?
2. CAN-SPAM compliance
3. What constitutes an opt-in?
4. A deep dive into unsubscribe laws based on email type
5. FAQs

What exactly are anti-spam and data protection laws?

Anti-spam and data protection laws are rules and regulations that help keep your inbox free from unwanted emails and protect your personal information.

Anti-spam

Anti-spam laws are like the bouncers at a club for your email inbox. They set the rules for businesses and individuals sending emails, ensuring they’re not sending you messages you didn’t ask for. These laws usually require senders to have your permission to email you and provide a way for you to easily opt out or unsubscribe from their emails if you change your mind.

Data protection

Data protection laws are like guardians for your personal information. They make sure that companies and organizations collect, store, and use your personal data (like your name, email address, or phone number) responsibly and safely. These laws often require organizations to tell you what they will do with your data and keep it secure.

So, in simple terms, anti-spam laws stop unwanted emails, and data protection laws keep your personal information safe when it’s collected and used by others. Both are designed to give you more control over your inbox and your personal data.

CAN-SPAM compliance

The CAN-SPAM Act is a set of laws in the United States that say how businesses and individuals should send emails when the primary purpose is commercial. These laws are essential because they help stop annoying and unwanted emails—like spam.

You need to do a few things to be CAN-SPAM compliant when you send marketing emails for your business or any commercial reason. Firstly, you must identify yourself honestly with your ‘From,’ ‘To,’ and ‘Reply-to’ information, including your location. Misleading information is a no-go. You’ll also need to let your audience know that what you’re sending is a marketing message. Plus, you’ll need to give your audience an easy way to opt out, now and in the future. Honoring the opt-out promptly is key.

Each marketing email violating any of these rules can have costly legal consequences; penalties can go as high as $50,120. Yet, being familiar with CAN-SPAM is not just a legal thing—it’s a way to be a responsible and respectful email marketer.

When you opt to be CAN-SPAM compliant, you put your audience first. In turn, you’re building your reputation as a trustworthy sender who’s earned the right to remain in their inbox.

What constitutes an email opt-in?

The gold standard of opt-ins is a double-opt-in process. It’s simple: when someone gives you their email address, you follow up by sending a one-time automated email asking them to click a link and confirm their email address. If they do it, they’re opted in and this requirement is met.  If they do not opt in, no further email should be sent to the address.

You can create an email verification campaign using Customer.io, or, utilize your own confirmation process.

What if I automatically check a box to opt people in?

An automatically checked box on a signup form opting into marketing emails is a common, but potentially harmful practice.  This would not qualify as express opt-in, as it essentially relies on a potential subscriber simply not noticing that the box was checked.  Give your potential subscribers a valuable incentive to opt in and make that action explicit. 

It’s all about being responsible and respectful to your audience. For example, when you sign up for Customer.io, you don’t automatically get articles from the blog. Our customers need to explicitly opt-in to receive those marketing messages.

Recommended reading: How to reduce unsubscribe rates [Blog post]

A deep dive into unsubscribe rules based on email type

Now that you understand more about CAN-SPAM compliance and anti-spam protection laws, let’s look at two popular email types and whether they require an unsubscribe link. 

1. Marketing emails: what are they, and do they need an unsubscribe link?

Marketing emails are messages sent to individuals or a list of subscribers with commercial intent, that is, with the primary purpose of promoting products, services, or offers. 

Why send marketing emails?

Marketing emails are often used to engage with existing customers, build brand awareness, and attract potential buyers. They can take various forms, such as newsletters, promotional offers, product announcements, or event invitations.

Example marketing email:

Do marketing emails need an unsubscribe link?

Based on best practices and legally, all marketing emails must contain an unsubscribe link.

Most email marketing providers (like Customer.io) are stricter than the law and only allow sending emails if people have explicitly opted in. Some companies want to buy or rent a list and use an email marketing company to email those recipients. While this may be technically legal, it often damages your reputation and the reputation of the email marketing software. You’ll usually find this behavior is outlined and restricted in their terms and conditions. Companies that send email (including us) require people to opt in first.

So, here’s the summary of what we’d recommend to stay compliant and to give your subscribers the best user experience possible:

Even when someone has opted in or purchased in the past, you must have a way to unsubscribe when sending commercial emails. Many email marketing platforms require and enforce an unsubscribe link for all messages.

Rather than globally opting people out, consider simple preferences for which emails a subscriber will get. In Customer.io, you can store subscriber preferences as “attributes.” Then, you can explicitly send emails to subscribers who’ve indicated their interest in particular email types.

Here’s an example of how we use the attribute subscribed_newsletter to segment individuals who have explicitly opted into our marketing newsletter:

2. Transactional emails: what are they, and do they need an unsubscribe link?

Unlike marketing emails, transactional emails are primarily informational. They provide customers with essential information related to a specific transaction or interaction.

Why send transactional emails?

Transactional emails are essential for conducting business and providing a positive customer experience. Examples include order confirmations, shipping notifications, and receipts and invoices. These types of emails maintain transparency, build trust, and keep customers informed about the status of their interactions with a business. 

Typically, transactional emails are triggered automatically by specific user actions or events, ensuring timely and relevant communication. No one wants to get their shipping notification after it is delivered, right?

Example transactional email:

Do transactional emails need an unsubscribe link?

Traditionally, transactional emails do not need an unsubscribe link, but we need to be really specific about what a transactional email is. An email is deemed transactional when its content facilitates a pre-established transaction or provides updates on an existing transaction for a customer.

Translation? You don’t need to have an unsubscribe link on anything like a receipt, invoice, or anything relating to a purchase or transaction.

Answers to your frequently asked questions

Not everything is completely straightforward when it comes to using unsubscribe links in your emails. Here are answers to two common questions that arise when trying to navigate the rules.

1. How do I know if what I’m sending has commercial content?

Generally, it all comes back to the primary purpose of the email. If the main reason for sending the email is to advertise or promote a product, service, or offer, then it likely has commercial content. If the email includes discounts, special offers, product descriptions, or calls to action to buy something, then it’s definitely commercial.

The best way to think about it is from the recipient’s perspective: If someone receiving the email would likely view it as an attempt to sell or market a product or service, it’s likely to have commercial content.

Examples of commercial email content include:

• Newsletters,
• Onboarding emails
• Product updates
• New product announcements
• Seasonal sales, flash sales, and similar
• Abandoned cart emails

2. What if the message combines commercial content and transactional content?

Since transactional messages don’t need an opt-out process, you might be tempted to pack them full of sales offers.

This practice should be avoided, as these communications are subject to CAN-SPAM regulations:

• Huge receipt, small offer? No unsubscribe link is needed.
• You bought something, now buy other things! You need an unsubscribe link.

Breaking the rules in a world with absolutes

Email products don’t always map well to what happens in the real world.

• Email newsletter products absolutely won’t let you send an email without an unsubscribe link or to people who have previously unsubscribed.
• Transactional email products don’t have unsubscribe links and don’t let you filter out people who have unsubscribed (or have more complex email preferences).

Imagine this situation:

• Someone signed up for your product last year.
• A few months ago, they changed their email preferences to: “Opt-out of all email.”
• Today, you have a security issue, and they need to change their password – like right now.

Do you email people about security issues if they have unsubscribed? Is that in violation of CAN-SPAM laws? Do you respect their wishes to opt out?

This exact case happened to almost every business on the internet when the Heartbleed vulnerability came out.

It’s not clearly obvious. Luckily, this case is covered under “CAN-SPAM”. Emailing someone about a security issue is considered a “Transactional or Relationship” message if it:

“gives warranty, recall, safety, or security information about a product or service”

FTC – CAN-SPAM Act: A compliance guide for business

If someone signed up and there’s a security issue that may affect them, you should email them regardless of their marketing preferences. You don’t need to put in an unsubscribe link; you can also ignore whether or not they have previously unsubscribed.

Mastering email compliance: building trust and respect with your audience

Knowing when to include an unsubscribe link in your emails is not only a legal requirement but also a testament to responsible and respectful email marketing. Email compliance, such as CAN-SPAM, ensures transparency and empowers recipients to have control over their inboxes. Adhering to these laws and respecting your audience’s preferences builds trust and maintains a positive sender reputation.

Remember, whether a marketing email or a transactional email, putting your audience’s needs first keeps you compliant and fosters stronger, more engaged relationships with your subscribers. 

It’s a win-win for both your business and your audience.

Now, get ready to roll up your sleeves to learn how to avoid spam complaints, reduce list churn, and grow your engagement! Check out our Email Deliverability Workshop.