Imagine an everyday scenario: Internet users browse through online stores, adding their interested items to their shopping cart. Some of them have already made one or more purchases in the same store; others may even be logged into their account on the store page while they are active there.

There are already interesting metrics for the store operator at this point: What does each potential customer look at and for how long? Which different products are of interest to the same person? What do customers look at before they buy something?

However, various reasons can lead to a purchase not being completed. A customer might lose interest in the product, find a better offer elsewhere or decide to buy something completely different – or nothing at all. Perhaps the purchase needs to be reconsidered, or an unfavourable step by a cat on the keyboard has closed the store tab irretrievably.

Either way, the result would be a shopping cart filled with products that would be now left abandoned. Every seller’s desire to turn those potential purchases into real ones is very understandable.

In our scenario, the store operator knows the customer’s email address – perhaps because they already have an account and were logged in while browsing the site or because, as a new customer, they had already completed the purchase process to such an extent that they had already entered their details before refraining from placing the final order.[1]

In this case, the seller may want to remind the potential customer that the products they found interesting enough to add to their shopping cart are still there, waiting for them.

So, why not send an email to this effect? Would such an email to shopping cart abandoners be permissible?

First of all, it should be noted that such an email is both business-related and sent with the intention of promoting sales. This type of email must therefore be classified as advertising. Consequently, the sending must comply with the applicable rules for sending any other advertising email.

In short: Permission is needed.

Permission

The recipient must have effectively consented to the mailing; otherwise, the mailing can only be based on the customer relationship exception.

As a reminder:

Consent to the sending of advertising emails must be provided

• prior to the sending,
• separately from other declarations,
• actively, and
• specifically for the product in question.

The recipient must also have been informed of their right to revoke the consent.

Alternatively, the customer relationship exception may only be invoked if

• the recipient has previously purchased a product or service,
• the advertising relates to the seller’s own goods, similar to the purchased products, and
• the recipient was informed of their right to object when their data was collected and each time it is used.

Furthermore, the recipient must not have objected before the mailing.

Focus: Product Category

Particular attention should be paid to the types of products being advertised, both in the case of consent and in terms of the customer relationship exception. For instance, if the user has a bicycle in their shopping cart and a corresponding reminder email is to be sent, its permissibility depends on whether

• their original consent included the advertising of bicycles, or
• whether bicycles are similar to the products they have previously purchased as part of a customer relationship.

Depending on the store’s product range, this is either a given or one of the pitfalls that can prevent the permission from being valid.

Conclusion

The question of whether an email can be sent to shopping cart abandoners has us looking at the rules that also apply to any advertising email. Ultimately, there are no exceptions or special hurdles for such emails compared to other commercial emails. As long as the legal CSA criteria are complied with, such an email is also on the legally safe side.

The question of whether emails to shopping cart abandoners actually do promote sales or whether they have a deterrent effect is not a legal one and is therefore left to the marketing departments.

[1] For our scenario, we assume that this has been done in accordance with data protection regulations.