The phenomenon of so-called “abandoned carts” is a daily occurrence in the e-commerce industry. Many customers browse a store’s offer, add products to their cart, but ultimately do not complete the purchase. According to Santander Consumer Bank’s report “E-commerce Experiences”, over 20% of Polish consumers say they “often” abandon transactions, and 43% admit it happens to them “occasionally.” Only 9% of respondents claim they never leave their purchases unfinished at the cart stage. This kind of abandonment means a loss of potential revenue for the seller. That’s why some companies use marketing strategies aimed at “recovering” the cart: sending email reminders about unfinished purchases, sometimes offering a discount or additional benefits. However, the question arises: under the new Electronic Communications Law (PKE), GDPR regulations, and UOKiK interpretations, can such emails be sent without the recipient’s explicit consent?
Why Does This Raise Legal Questions?
The new Electronic Communications Law (PKE), in force since November 2024, unfortunately does not define the concept of direct marketing. The explanatory memorandum to the bill clearly states that the new law does not apply to communications of a technical or service nature.
Authorities that have previously imposed fines for telemarketing without the recipient’s consent maintain that marketing is not limited to classic sales offers, but includes any messages or phone calls intended to generate interest in a company’s offer. In practice, this means that even if an email does not explicitly say “buy now,” but encourages a return to the website and completion of a transaction, it could be considered direct marketing. And if so, it requires prior consent.
Abandoned Cart Email – Marketing or Technical Message?
The key question is whether an abandoned cart reminder is a strictly technical message (e.g. information about transaction status), or a marketing activity.
Technical message: If the email’s sole purpose is to inform the customer — for example, about a payment error or confirmation of order receipt — it would not be treated as marketing.
Direct marketing: If the email contains even an indirect prompt to return to the site and complete the purchase — thereby encouraging a transaction — it may be classified as marketing.
How Often Do Customers Abandon Carts — and Why?
According to the “E-commerce Experiences” report by Santander Consumer Bank:
23% of respondents say they abandon carts frequently or very frequently
43% say they do so occasionally
Only 9% never abandon carts and always complete purchases
The most common reason is price sensitivity and the search for better deals: 40% of consumers abandon their cart after finding the same product at a lower price elsewhere. Other reasons include high delivery costs (36%), unexpected fees (29%), lack of preferred payment methods (21%), or long delivery times (19%). Additionally, 16% of respondents say the absence of convenient return options discourages them from finalizing purchases.
What Encourages Shoppers to Return to Abandoned Carts?
From the perspective of online retailers, winning back customers who hesitate at the last moment is crucial. According to the same report:
42% of consumers return if they receive a discount or special offer on the items in their cart
38% say they simply need more time to make a decision
18% are swayed by positive reviews or ratings
14% return after receiving a reminder from the store
Notably, 16% say they never go back to abandoned purchases.
These statistics explain why abandoned cart emails are so commonly used in e-commerce. Many users will return and complete the purchase if they receive a reminder, a discount, or additional information.
What Does This Mean from a Legal Perspective?
The most frequently cited reasons for cart abandonment relate to conscious consumer decisions — not technical errors like browser crashes or connectivity issues. Unfortunately, this supports the argument that abandoned cart emails are marketing actions, not technical messages.
If that’s the case, cart recovery campaigns are subject to specific legal requirements.
Marketing Consent under the New PKE
In light of the new Electronic Communications Law (PKE) and GDPR, the following legal requirements apply:
Consent must be specific and voluntary: pre-checked boxes are not allowed
Consent cannot be “hidden” in terms and conditions: it must be visible, understandable, and accessible
Easy opt-out: every message must include clear information on how to unsubscribe (e.g. an unsubscribe link in the footer)
Accountability: the company must be able to prove who gave consent, when, and in what form (including the wording of the information provided at the time)
Is “Soft Opt-In” Enough?
“Soft opt-in” refers to situations where a customer has already made a purchase, provided their email address, and has not objected to further contact regarding similar products or services. This concept stems from EU law and is a standard practice in many member states.
However, applying this solution to abandoned carts may be challenging in the Polish legal environment.
First, the new PKE does not explicitly allow for this exception. It would require a more complex legal approach based on direct application of EU regulations.
Second, it would only apply to customers who had already completed a purchase in that store (i.e. in the case of subsequent abandoned carts).
How to Do It Legally (and Effectively)?
If you want to send abandoned cart reminders, make sure they are sent only to users who have already consented to email marketing. You can read more about how to properly obtain marketing consent in these articles:
https://prawomarketingu.pl/jak-uzyskiwac-zgody-marketingowe-wystrzegaj-sie-typowych-formulek-prawnych/
https://prawomarketingu.pl/wymogi-prawne-w-lead-generation/#jak-powinna-wygladac-poprawna-zgoda
In the event of an audit, you must be able to demonstrate when the user gave consent, what it covered, and provide quick access to supporting documentation (such as screenshots, system logs, or checkbox confirmations).
Abandoned cart reminders can be supported by additional tactics:
Discounts or promotions: 42% of consumers return to their cart if offered a discount (just be mindful of the legal requirements for price reductions: https://prawomarketingu.pl/jak-zaprogramowac-obnizke-zgodnie-z-dyrektywa-omnibus/)
Concise messaging: highlight the benefits of the product and what the user gains by completing the purchase (but avoid misleading statements)
Summary
Sending abandoned cart emails is a common strategy for boosting conversion rates in e-commerce. The “E-commerce Experiences” report by Santander Consumer Bank shows that more than 60% of users abandon carts either frequently or occasionally. At the same time, many say they are willing to return — especially if they receive a discount, additional information, or simply a reminder.
However, from a legal standpoint, any email encouraging users to complete a purchase may be classified as direct marketing. In such cases, sending it requires the recipient’s prior consent. Attempting to recover a transaction without this legal basis carries the risk of fines from authorities such as UOKiK and could violate GDPR.