On November 26, 2021, the Court of Justice of the EU (“CJEU”) held in Case C-102/20 that the display of advertising messages in an electronic inbox in a form similar to that of an actual email constitutes direct marketing, and therefore is subject to EU Member States’ rules on direct marketing (see press release here).  In this case, the advertisement in question was shown in the inbox list of a user’s private emails, resembling the appearance of an email, although it was labelled “advertisement”.

The CJEU emphasized in its decision that this form of advertisement is distinguishable from advertising banners or pop-up windows that appear at the outer edge of private messages or separately from them.  According to the CJEU, the advertisement here was subject to direct marketing rules because it resembled an electronic communication (i.e., an email).

Notably, the advertisement in this case was shown only to users who had opted for a “free” version of the email service – paying subscribers did not receive this same advertisement.  Unfortunately, the CJEU declined to clarify whether consent for direct marketing could be tied with the provision of an email service, a common practice in some industry sectors, such as online media and news websites (a position which was supported in a decision of the Austrian Data Protection Authority in 2018, as discussed in our prior blog post here).  The CJEU remanded the case to the German court that originally referred it to the CJEU, to decide whether the consent obtained in this scenario meets the standard of the GDPR.

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Photo of Kristof Van Quathem Kristof Van Quathem

Kristof Van Quathem advises clients on information technology matters and policy, with a focus on data protection, cybercrime and various EU data-related initiatives, such as the Data Act, the AI Act and EHDS.

Kristof has been specializing in this area for over twenty…

Kristof Van Quathem advises clients on information technology matters and policy, with a focus on data protection, cybercrime and various EU data-related initiatives, such as the Data Act, the AI Act and EHDS.

Kristof has been specializing in this area for over twenty years and developed particular experience in the life science and information technology sectors. He counsels clients on government affairs strategies concerning EU lawmaking and their compliance with applicable regulatory frameworks, and has represented clients in non-contentious and contentious matters before data protection authorities, national courts and the Court of the Justice of the EU.

Kristof is admitted to practice in Belgium.

Photo of Anna Sophia Oberschelp de Meneses Anna Sophia Oberschelp de Meneses

I assist companies in navigating EU laws on technology, with a focus on data protection, cybersecurity, and consumer protection. My goal is to make complex regulations, such as the GDPR, AI Act, Unfair Commercial Practices Directive, and Digital Services Act, more accessible and…

I assist companies in navigating EU laws on technology, with a focus on data protection, cybersecurity, and consumer protection. My goal is to make complex regulations, such as the GDPR, AI Act, Unfair Commercial Practices Directive, and Digital Services Act, more accessible and relevant to everyday business operations.

Regarding data protection and privacy, I guide businesses on GDPR, ePrivacy Directive, and EU marketing laws, covering topics like international data transfers and privacy-focused marketing. Regarding cybersecurity, I help with risk assessments, incident response planning, and staying informed about regulations such as NIS2 and the Cyber Resilience Act. Regarding consumer protection, I assist companies in ensuring their terms are enforceable, their online platforms clearly provide required information, and their practices comply with rules against banned commercial activities.

Fluent in several languages and experienced in international contexts, I am committed to integrating compliance smoothly into business operations, enabling companies to succeed in the dynamic digital environment.