TL;DR for the DPO
Consent to RECEIVE the newsletter does not cover consent to be TRACKED on opening: these are two distinct purposes requiring two separate, non pre-ticked choices. The CNIL closed its transitional period on 14 July 2026; the Italian authority adopted comparable guidelines with decision 284/2026. An Italian client emailing recipients in France is already within the scope of checks.
The three points that matter
- What governs is the purpose of the pixel, not the type of email. A commercial pixel placed in a transactional email - order confirmation, shipping, appointment reminder - still requires consent. Changing the envelope does not help.
- Almost every sending tool has open tracking ENABLED BY DEFAULT. This means non-compliance is the starting state: it must be switched off or backed by consent, not the other way round.
- Analysing opens to adapt frequency, subject line or content, or to infer the recipient's tastes and preferences, is exactly the kind of use the Italian guidelines bring within the scope of consent.
What to do now, in practice
1) Ask the client which newsletter tool they use and check whether open tracking is on: in most cases it is, and nobody knows; 2) separate the tick boxes: one to receive communications, one for tracking, neither pre-ticked; 3) update the notice explaining that opens are measured, for what purpose and how long the data is kept; 4) review the existing contact base: if it has been tracked without consent, it must be informed and given the means to object; 5) if the client also sends to France, the priority is immediate because the deadline there has passed; 6) review the Art. 28 agreement with the sending platform provider.
Why it matters for your clients
It is the classic invisible obligation: nobody decided to track opens, the tool simply does it from the day it was switched on. That makes it an excellent check to propose: it takes little time, touches an activity the client performs every week, and the result is almost always a real and easily demonstrable non-compliance. It applies in B2B too.
Official source:CNIL - deliberation no. 2026-042 of 12 March 2026, recommendation on email tracking pixels (published 14 April 2026); Italian Data Protection Authority - decision no. 284 of 17 April 2026, Official Gazette no. 98 of 29 April 2026Looking for a workspace for your DPO work?
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