Reading time: 6 minutes

When advertising for your business, a common marketing technique is to send marketing emails to past customers. If done well, email marketing can be a good way to maintain customer engagement. One way to measure this is by allowing your customers to opt in or out of marketing emails when they complete a transaction with your business. However, some customers may not appreciate an overly saturated inbox and may ignore your emails. So, it is important to duly consider your email marketing plan and any legal requirements that may apply. This article will outline whether you need to ask your customers to opt-in or out for marketing emails by going through:

  • the pros and cons of marketing emails;
  • your legal obligations; and
  • the details of opting-in vs opting-out.

Benefits of Marketing Emails

Marketing emails are emails you send your customers advertising your business and encouraging them to purchase your products or services. These emails may contain details about new products or special offers for those particular customers. Conversely, they may also provide personal updates about your business in a newsletter format. These emails are highly customisable, and you can tailor them to suit your needs. Email marketing may also allow you to reach new customers and draw back repeat customers as well.

There are many benefits of email marketing you can take advantage of, including: 

  • engagement of your target customers at a relatively low cost;
  • as much personalisation as you like;
  • the potential to gain new subscribers;
  • an ability to establish a recognisable and cohesive brand through your tone, style, and design;
  • the ease with which it can be to set up,  with  automated software that can manage the process;
  • an ability to customise  and scale your marketing to as large (or as little) an audience you want;
  • access to data analytics to help you gain information about your customers;
  • the potential to direct traffic to your website;
  • a high level of shareability;  and
  • an easy way to share your expertise or product tips with your customers.

For example, you can use marketing emails to track which product links customers are more likely to click on and which kinds of emails get the most engagement.

Potential Cons of Marketing Emails

Your customers will likely receive a high volume of emails every day, and you have to be careful that your marketing emails are not lost amongst the masses. You want your emails to be frequent, but you do not want to overwhelm your customers with emails they see as unnecessary and not worth opening. This may even discourage customers from engaging with your business if you are not careful. Other drawbacks may include:

  • the invitation  of legal consequences if you do not meet your regulatory requirements;
  • the reaching of  customers you had not intended; and
  • the investment of time and effort in an inefficient marketing technique.

It is important to adequately plan the content of your marketing emails so that they are relevant to your customers. 

What Does the Law Say?

You also have to be careful that your marketing emails do not cross the line to become spam. In New Zealand, any unsolicited commercial electronic messages sent to your customers will qualify as spam. These are messages that are commercial in nature, and promote or market your products and services.

However, not all commercial electronic messages are unsolicited and illegal. Any transactional emails you send related to a customer’s purchase, such as an email receipt or confirmation email, will not qualify as spam. 

You can avoid your marketing emails becoming spam by ensuring that you have:

  • your customer’s consent to send them these emails;
  • your business’ name and contact details in each message; and
  • a way to unsubscribe from further marketing emails.

When collecting your customers’ email addresses, ensure you have adequate privacy protections in place.

Opting In or Opting Out

Asking your customers to opt in or out of you sending them marketing emails is an efficient way to establish clear consent. For example, once a customer has completed a transaction with your business, you may include a tickbox on the final page asking them if they wish to receive marketing emails. If they opt-in, then that is express consent for you to send them such emails. Note that the transaction on its own is not sufficient consent to send them marketing emails.

Email marketing can be an efficient way to engage customers and promote return business, so it is worth considering having this tool in your business. However, you need to make sure you include a statement detailing what kind of emails your customer can expect to receive if they opt in. This means that a customer is fully informed when they consent to these kinds of emails.

Tip: Try to avoid pre-ticked opt-in boxes or asking your customers to tick a box to opt out of receiving marketing emails. This raises issues as to whether they genuinely consented to receive such emails.

Key Takeaways

Marketing emails can be a good way to inform your customers about your brand whilst maintaining customer engagement. Therefore, it may be a good idea to include an opt-in facility in your business transactions. However, you need to be careful not to overwhelm your customers with these emails and ensure that you have their fully informed consent to send them marketing correspondence. If you would like more information or help with your marketing emails, contact LegalVision’s eCommerce lawyers on 0800 005 570 or fill out the form on this page.

Frequently Asked Questions

What are marketing emails?

Marketing emails qualify as commercial electronic messages. These are emails of a commercial nature, marketing or promoting your goods/services.

What does ‘opt-in’ or ‘opt-out’ mean?

Asking your customers to opt in or opt out of receiving marketing emails means that you are asking for their consent to send them such emails.

What is spam?

In legal terms, spam refers to unsolicited commercial electronic messages. These are commercial messages that your customers have not asked to receive and are illegal.

When are commercial electronic messages not spam?

Commercial electronic messages are not spam if you identify your business in the message and provide contact details. You also need to give an option to unsubscribe and have customer consent.

About LegalVision: LegalVision is a tech-driven, full-service commercial law firm that uses technology to deliver a faster, better quality and more cost-effective client experience.

The majority of our clients are LVConnect members. By becoming a member, you can stay ahead of legal issues while staying on top of costs. From just $119 per week, get all your contracts sorted, trade marks registered and questions answered by experienced business lawyers.

Learn more about LVConnect

Need Legal Help? Get a Free Fixed-Fee Quote

If you would like to receive a free fixed-fee quote or get in touch with our team, fill out the form below.

  • 2019 Top 25 Startups - LinkedIn 2019 Top 25 Startups - LinkedIn
  • 2020 Excellence in Technology & Innovation – Finalist – Australasian Law Awards 2020 Excellence in Technology & Innovation Finalist – Australasian Law Awards
  • 2020 Employer of Choice – Winner – Australasian Lawyer 2020 Employer of Choice Winner – Australasian Lawyer
  • 2021 Fastest Growing Law Firm - Financial Times APAC 500 2021 Fastest Growing Law Firm - Financial Times APAC 500
  • 2021 Law Firm of the Year - Australasian Law Awards 2021 Law Firm of the Year - Australasian Law Awards
  • 2020 Law Firm of the Year Finalist - Australasian Law Awards 2020 Law Firm of the Year Finalist - Australasian Law Awards