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.

Print:
EmailTweetLikeLinkedIn
Photo of Kristof Van Quathem Kristof Van Quathem

Kristof Van Quathem advises clients on data protection, data security and cybercrime matters in various sectors, and in particular in the pharmaceutical and information technology sector. Kristof has been specializing in this area for over fifteen years and covers the entire spectrum of…

Kristof Van Quathem advises clients on data protection, data security and cybercrime matters in various sectors, and in particular in the pharmaceutical and information technology sector. Kristof has been specializing in this area for over fifteen years and covers the entire spectrum of advising clients on government affairs strategies concerning the lawmaking, to compliance advice on the adopted laws regulations and guidelines, and the representation of clients in non-contentious and contentious matters before data protection authorities.

Photo of Anna Oberschelp de Meneses Anna Oberschelp de Meneses

Anna Sophia Oberschelp de Meneses is an associate in the Data Privacy and Cybersecurity Practice Group.  Anna is a qualified Portuguese lawyer, but is both a native Portuguese and German speaker.  Anna advises companies on European data protection law and helps clients coordinate…

Anna Sophia Oberschelp de Meneses is an associate in the Data Privacy and Cybersecurity Practice Group.  Anna is a qualified Portuguese lawyer, but is both a native Portuguese and German speaker.  Anna advises companies on European data protection law and helps clients coordinate international data protection law projects.  She has obtained a certificate for “corporate data protection officer” by the German Association for Data Protection and Data Security (“Gesellschaft für Datenschutz und Datensicherheit e.V.”). She is also Certified Information Privacy Professional Europe (CIPPE/EU) by the International Association of Privacy Professionals (IAPP).  Anna also advises companies in the field of EU consumer law and has been closely tracking the developments in this area.  Her extensive language skills allow her to monitor developments and help clients tackle EU Data Privacy, Cybersecurity and Consumer Law issues in various EU and ROW jurisdictions.