Issue #254 All About Email

Hi, {{first_name|friend}}. 👋

Welcome to Issue #254 of All About Email!

Last week, my guest author Travis Hazlewood stole the headlines as my most popular newsletter of the last ten weeks! So, if you missed it, check it out.

This week, I'm back with Part Two of my deep dive into the CNIL, asking: “Should we just turn open tracking off?”

Let’s go! 👇

⚠️ Before we get stuck in, I am not a legal professional or a privacy expert (although I am a big privacy advocate, and cover topics like this often), so the below is not legal advice; check with your organisation’s legal support.

🚨 If you missed Part One in Issue #252, you might want to check that out, as I looked at why simply identifying your “French and Italian contacts” and disabling open tracking for them isn't the neat compliance solution it first appears to be.

That leaves us with a tough question:

If recipient-level tracking consent is still difficult or impossible on many ESPs, should we just turn open tracking off altogether?

It sounds drastic. But given how unreliable open data has already become, maybe it's a conversation we should be having anyway.

🤔 Given all of this, what about the option that most compliance guides mention briefly and then skip past: turning off open tracking globally, for everyone, full stop.

If no recipient-specific tracking pixel, or any equivalent open-tracking resource, is included, there is no open-tracking consent to obtain in France or Italy and no separate open-tracking consent signal to maintain for each contact.

🧠 That does not remove the need to document permission to send the email, or address any other tracking you still use.

🚨 One important caveat: a setting labelled “open tracking off” does not necessarily mean the tracking pixel is removed.

💡 Before treating a global switch as the complete answer, check exactly what your ESP disables: the pixel itself, individual recording, or merely the reporting attached to it.

🚨 A recorded open doesn't necessarily mean someone read your email. It means the tracking image was requested. That request may have resulted from:

And the reverse is also true: someone can read an email without triggering an open at all if remote images are blocked.

💡 Open rate has not reliably measured "people who read the email" for years. I covered this in Issue #238. Removing it and rebuilding your measurement around better signals isn't just a compliance workaround; it's better practice:

I'd be doing you a disservice if I didn't tell you about what switching it off could actually cost you (and this isn’t an exclusive list):

🚨 Those are real trade-offs. But they don't make unreliable or potentially unlawful tracking acceptable.

They show how much of the email marketing ecosystem has been built around a metric that stopped being dependable a while ago. The regulation may simply be forcing email marketing to admit it.

This feels like the obvious answer. And as you know from Issue #237, my epic mess-up with click-based triggers, it comes with its own problems. Two of them, actually:

💡 As I discovered the hard way, some of your most engaged readers may never click a thing:

🚨 Tracked clicks are not automatically outside privacy scrutiny either.

Turning off open tracking doesn't give you a free pass to make click tracking more invasive. The goal is better measurement, not just different invisible tracking.

🧠 Clicks are a better signal than opens. But swap one for the other and call it done? That's not a strategy. We need to start building a broader, more defensible signal mix of engagement that’s relevant to our audiences and brands.

I’ve talked about this before in Issue 239, but here’s a little refresher of what I’ve come up with, and bearing in mind this isn't legal advice, and your DPO should be involved before anything structural changes.

💡 Some of the things I'm suggesting you might not be able to do with your ESP right now, and for me, that's the case:

🚨 These now have different rules and different consent requirements/exemption analyses.

Where you don't have valid consent, stop. Those uses are hard to fit within either regulator's narrow exemptions, and they're the highest-risk use cases if enforcement comes.

💡 This is separate from a normal unsubscribe. No re-entry of the email address, effective immediately, and it needs to work for emails already in the inbox, not just future sends.

🤔 Beehiiv still can’t do this. Brevo and Customer[dot]io provide recipient-facing withdrawal mechanisms, while Klaviyo says a consent-status change stops it recording opens even from emails already in the inbox.

But I still haven’t found public documentation confirming that any of them natively provide all three elements together: a one-click withdrawal link, immediate effect, and explicit neutralisation of tracking from previously delivered emails.

💡 For now, I'd guess that's outside of most ESP users' control.

🚨 Before making any compliance decisions, a "recommendation" from a regulator has a way of becoming something else entirely when enforcement starts, which it has for the CNIL.

🤔 Maybe the real mistake is treating open tracking as something we have to save?

We’ve spent years building subject-line tests, sunset policies, engagement scores and sponsor reporting around a signal that no longer reliably tells us whether someone actually read the email.

💡 The CNIL and Garante may be forcing a conversation about compliance, but perhaps the more useful question is whether this is the push we needed to build better measurement in the first place.

For more information on this topic, check out Issues 252, 238, and 239.

That's it for this week, {{first_name|friend}}. 👋

Simon

Every week, as I write this newsletter, I'll share the track of the moment to create an unbelievably eclectic playlist just for your inbox.

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This week's excellent and insightful email news & tips:

If you have any questions about this email or email marketing, please reply, and I will get back to you as soon as possible.

I hope you have a great week! 👋