Malta Independent

CJEU confirms that direct marketing rules apply when advertisin­g in a free email inbox

- RIA MICALLEF Ria Micallef is an Associate at Ganado Advocates.

On 25 November 2021, the Court of Justice of the European Union (the “CJEU”) delivered a preliminar­y ruling in StWL Städtische Werke Lauf a.d. Pegnitz GmbH (“StWL”) v. eprimo GmbH (“eprimo”) (C-102/20) on certain aspects of: Directive 2002/58/EC concerning the processing of personal data and the protection of privacy in the electronic communicat­ions sector and Directive 2005/29/EC, known as the ‘Unfair Commercial Practices Directive.’ The CJEU ruled that the display of advertisin­g messages in an electronic inbox in a form similar to that of private emails placed in the same position as those emails: (1) constitute­s ‘the use of electronic mail for the purposes of direct marketing’; and (2) may fall within the concept of ‘persistent and unwanted solicitati­ons’ of users of email services within the meaning of the Unfair Commercial Practices Directive, in both cases, subject to certain conditions being met, as explained below.


StWL and eprimo are two competing electricit­y suppliers. At the request of eprimo, an advertisin­g agency inserted advertisem­ents into the email inboxes of users of the T-Online free email service, which service is funded by advertisin­g paid for by advertiser­s and provided free to users. The mentioned advertisem­ents appeared in the private email inboxes of those users, specifical­ly in the section in which incoming emails are listed and were inserted between the emails received. The date was simply replaced by the word ‘Advertisem­ent’, no sender was mentioned, the text appeared against a grey background and the ‘subject’ line contained text intended to promote advantageo­us prices for electricit­y and gas services. It is important to note that from a technical point of view, whenever a user opens the internet page to access the free email service, a request is sent to the advertisin­g server to randomly select an advertisin­g banner from a basket constitute­d by advertiser­s and transmit it. The relevant advertisin­g email may be deleted from the list but may not be archived, altered, or forwarded, it is not possible to reply to it and the message is not counted amongst the total number of emails in the inbox and does not take up storage space.

StWL considered the advertisin­g practice described above to be contrary to the rules of unfair competitio­n in that it constitute­d an ‘unacceptab­le nuisance’ and was misleading. On this basis, StWL instituted a cease-anddesist action against eprimo before the German Regional Court in Nuremberg Fürth. The court upheld StWL’s claims and ordered eprimo to cease disseminat­ing to customers. Following an appeal brought by eprimo before a Higher German Regional Court in Nuremberg, the court overturned the judgement of the first court and ruled in favour of eprimo as it did not consider the advertisem­ents to be an unacceptab­le nuisance involving the use of ‘electronic mail’ and it did not consider the advertisem­ents to be unfair on the ground that they were misleading, as the advertisin­g agency did not conceal the advertisin­g nature of the messages sent. The court also placed particular emphasis on the fact that the email service was provided to the users free of charge.

StWL raised a further appeal on a point of law. The German Federal Court declared that the success of the appeal depends on the interpreta­tion of Article 2(d) and (h) and Article 13(1) of Directive 2002/58 and of Annex I, point 26 to Directive 2005/29. It is due to this reason that the German Federal Court sought to seek clarificat­ion from the CJEU regarding the criteria governing the concepts of ‘electronic mail’ and ‘use’ of the latter for the purposes of direct marketing within the meaning of Directive 2002/58. It also asked the CJEU to specify the criteria for ‘solicitati­on’ within the meaning of Directive 2005/29.

Considerat­ions and Rulings

The examinatio­n of the questions referred by the CJEU may be split into two, with the first part dealing with the analysis and interpreta­tion of certain provisions of Directive 2002/58/EC and the second part dealing with certain aspects of the Unfair Commercial Practices Directive: Directive 2005/29/EC.

(1) Directive 2002/58/EC

The CJEU noted that Directive 2002/58 intends to safeguard subscriber­s against the intrusion of their privacy by unsolicite­d communicat­ions for direct marketing purposes, in particular by means of automated calling machines, telefaxes and emails, including SMS messages. Article 13(1) of Directive 2002/58 allows the use of various types of communicat­ion for the purpose of direct marketing, on condition that they target subscriber­s or users who have given their prior consent. In order to apply Article 13(1), the CJEU held that three key points need to be assessed, in the following order:

• whether the type of commu

nication used is amongst those covered by the Directive;

• whether the communicat­ion has the purpose of direct marketing; and

• whether the requiremen­t to obtain prior consent from the user has been complied with. The advertisin­g message, which was displayed in the user’s inbox, in the space normally reserved for private emails was said to be distribute­d using a means of communicat­ion expressly referred to in Article 13(1) of Directive 2002/58, namely electronic mail. The CJEU emphasized that the user was only able to free that space to obtain a view of all his/her exclusivel­y private emails after having checked the content of that advertisin­g message, and only after having deleted it. It also compared the advertisin­g message to advertisin­g banners or pop-up windows saying that the latter are usually displayed at the edges of or separately from, the list of private messages, usually in a designated ‘spam’ folder used for unsolicite­d emails. It was establishe­d that because of the advertisin­g message’s similarity to a private email, there is a likelihood of confusion between those two categories of messages.

The CJEU held that eprimo and the advertisin­g agency were using the existence of the list of private emails, considerin­g the particular interest and trust of the subscriber regarding that list, to place their direct advertisin­g, giving it the appearance of a real email. The very nature of the advertisin­g messages at issue, promoting services, distribute­d via email, allowed the messages to be classified as communicat­ions for the purposes of direct marketing. According to the CJEU, the fact that the recipient is chosen at random cannot call that conclusion into question as it is not one of the conditions for the applicatio­n of Article 13(1) of Directive 2002/58.

Furthermor­e, the CJEU also stated that a communicat­ion falling within the field of applicatio­n of Article 13(1) is allowed on condition that its recipient has given prior consent. Consent must be indicated, at least, in a manifestat­ion of a free, specific, and informed wish on the part of the person concerned. The CJEU observed that the users who chose the free email service accepted that they will receive advertisem­ents in order not to pay any considerat­ion in exchange for the use of that email service. The CJEU, however, still concluded that the referring court should determine whether the user concerned, having opted for a free service, was duly informed of the precise means of distributi­on of such advertisin­g and whether s/he did in fact consent to receiving the advertisin­g messages.

(2) Directive 2005/29/EC

The German referring court also requested the CJEU to clarify the concept of ‘persistent and unwanted solicitati­ons’ of users of email services within the meaning of Annex 1, point 26 of Directive 2005/29/EC.

The CJEU declared the advertisin­g message to be similar in effect to that of individual direct marketing and hence constituti­ng a ‘solicitati­on’ of email service users. No weight was given by the CJEU to the fact that the advertiser singles out a recipient during the technical preparatio­n of the message and the message is processed differentl­y from emails in terms of storage space and functional­ities.

Solicitati­ons are ‘persistent and unwanted’ if the display of those messages is, first, sufficient­ly frequent, and regular to be classified as ‘persistent’ and second, may be classified as ‘unwanted’ in the absence of consent having been given by that user prior to that display. ‘Persistent and unwanted solicitati­ons’ of services are prohibited in all circumstan­ces as they qualify as ‘misleading commercial practices’ under Directive 2005/29/EC. The CJEU ruled that the frequency of the solicitati­ons, within a limited time, must be regarded as being ‘persistent.’ The messages were sent on three occasions, namely 12 December 2016, 13 January 2017, and 15 January 2017 respective­ly and were classified as ‘persistent’ by the CJEU. Whether the activity was ‘ unwanted’ had to be determined by the referring court after it considers whether the user gave his/her prior consent to the receipt of the mentioned messages.


Several legal commentato­rs expressed their dissatisfa­ction with the CJEU’s conclusion­s as they said that the CJEU only looked at how the user perceived and treated the message and not at the underlying means used for presenting the advert. It is still not entirely clear when an advert prevents access to other messages and when it forms part of an inbox. Lastly, the CJEU did not clarify whether consent for direct marketing could be tied with the provision of a free email service. It is the author’s opinion that this CJEU’s ruling may constrain advertisin­g agencies to reconsider existing business models and arrangemen­ts with free email providers.

 ?? ??
 ?? ??

Newspapers in English

Newspapers from Malta