Inbox advertising, that is, the display of advertising messages in a form that is similar to an actual e-mail in an inbox, ought to be considered as use of electronic mail for the purposes of direct marketing, the Court of Justice of the European Union (CJEU) has recently affirmed.

This means that any such advertising must abide by EU rules regulating direct marketing.

The EU directive on privacy and electronic communications provides that the use of automatic calling machines, fax or electronic mail for the purposes of direct marketing may only be allowed in respect of subscribers who have given their prior consent.

Another EU law, namely, the EU directive concerning unfair business-to-consumer commercial practices, prohibits as an aggressive commercial practise the making of persistent and unwanted solici­tations by telephone, fax, e-mail or other remote media.

The facts of this case were briefly as follows.

An electricity supplier requested an advertising agency to distribute advertisements consisting of displaying banners in the e-mail inboxes of users of a free e-mail service funded by the advertising paid for by advertisers.

These messages appeared as soon as users of the e-mail service opened their inbox. The users concerned and the messages displayed were chosen at random.

Such e-mails were not visually distinguishable in the list from other e-mails in the user’s account except for the fact that the date was replaced by the word ‘advertisement’, no sender was mentioned, and the text appeared against a grey background.

The ‘subject’ section contained text intended to promote advantageous prices for electricity and gas services.

A competing electricity supplier filed an action before the national courts requesting its competitor to desist from such an advertising practice, alleging that such a practice was a form of unfair competition.

The CJEU affirmed that inbox advertising could be considered as a form of ‘persistent and unwanted solicitation’, in terms of the law

The Court of First Instance found in favour of the plaintiff. Upon appeal, the appellate court filed a preliminary reference before the CJEU requesting guidance on whether and, if so, in accordance with which conditions, inbox advertising may be regarded as compatible with EU law.

The CJEU observed that the primary objective of the EU directive on privacy and electronic communications is to protect subscribers against intrusion into their privacy by unsolicited communications for the purpose of direct marketing, particularly through the use of automated calling machines, telefaxes and e-mails, including SMS messages.

Such an objective must be safeguarded regardless of the technologies used. Hence, the importance of adopting a broad interpretation when considering the technological perspective of the type of communications covered by the directive, the court affirmed.

The CJEU considered the distribution methods utilised by the advertising agency for the advertisements in question as use of electronic mail likely to breach the objective of protecting users from any intrusion into their private life by unsolicited communications for the purposes of direct marketing.

The very nature of the advertising messages that promote services, and the fact that they are distributed in the form of an e-mail, militate towards a classification of such messages as ‘communications for the purposes of direct marketing.

The fact that the recipient of the advertising messages is chosen at random is irrelevant, the court emphasised. What matters is that there is a communication for a commercial purpose, which reaches, directly and individually, one or more e-mail service users.

The court then proceeded to analyse the ‘consent’ element. It observed that the use of e-mails for the purposes of direct marketing is allowed, on condition that its recipient has given prior consent.

Such consent must be a free, specific and informed wish on the part of the relevant person, the court clarified.

The CJEU noted that it is for the national court to ascertain whether the user concerned, having opted for the free T-online e-mail service funded specifically by advertising, was duly informed of the precise means of distribution of such advertising, and in actual fact consented to receive advertising messages.

By way of conclusion, the CJEU affirmed that inbox advertising could also be considered as a form of ‘persistent and unwanted solicitation’, in terms of the law. This is so if the display of such advertising messages is sufficiently frequent and regular to be classified as ‘persistent’ and ‘unwanted’, should the user not have provided prior consent to such display.

The rigid approach taken by the EU towards the protection of the privacy of individuals is evidenced by the broad interpretation of legislative measures enacted specifically with this objective, particularly the GDPR and the directive on privacy and electronic communications.

Indeed, it is only through such an interpretation that any legislative measure enacted with this objective can keep up with the times and withstand the rapid changes in technology so as to capture innovative ways and means whereby an individual’s right to privacy may be breached.

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