By a decision of November 25, 2021, the Court of Justice of the European Union (CJEU) ruled that the practice of displaying an advertisement under the appearance of an e-mail in the users’ e-mail box is subject to the prior information and consent of the users (as required under directive 2002/58/EC), without which it also constitutes an unfair commercial practice insofar as this practice corresponds to the notion of “repeated and unwanted solicitations” within the meaning of the Directive 2005/29/EC (“Unfair Commercial Practices Directive”) .
Indeed, the Court ruled that the following constitutes “use […] of electronic mail for the purpose of direct marketing”:
- the display in the inbox of the user of an electronic messaging service of advertising messages in a form similar to that of a real electronic e-mail and in the same location as the latter ;
- regardless of the random determination of the recipients of such messages or the determination of the degree of burden imposed on such user having any bearing in this regard;
- this use being authorized only on condition that the said user has been informed in a clear and precise manner of the modalities for the dissemination of such advertising and has expressed his specific and fully informed consent to receive such advertising messages.
Moreover, the Court added that, in the light of Annex I, point 26, of Directive 2005/29/EC (“Unfair Commercial Practices Directive”), such an approach falls within the concept of “repeated and unwanted solicitations” of users of electronic messaging services, within the meaning of that provision, if the display of those advertising messages was sufficiently frequent and regular and in the absence of consent given by that user prior to that display.
1. Context
StWL and eprimo are two competing electricity suppliers on the German market.
At the request of eprimo, Interactive Media CCSP, an advertising agency, placed advertisements in the mailboxes of users of the T-Online e-mail service, a service that is free of charge for users but financed by advertising paid for by advertisers.
These advertisements appeared in the inboxes of these users’ private e-mail boxes, inserted between e-mails received.
As a result, these users received advertisements in their inboxes on December 12, 2016, January 13, 2017, and January 15, 2017.
These advertisements were visually distinguishable from the account user’s other email list only by the fact that:
– the date was replaced by the word “Anzeige” (advertisement),
– no sender was mentioned and the text appeared on a gray background.
– The “Subject” section of this list entry contained text that was intended to promote low prices for electricity and gas services.
Technically, when the user opens the web page, a request (Adrequest) is sent to the ad server to select a banner ad at random from a basket of ads put together by the advertisers and forward it so that it appears in the user’s inbox. If the user clicks on the displayed ad, the input is transmitted to the ad server, which records the click and redirects the browser to the advertiser’s site.
T-Online treats the entry of the advertisement in question in the inbox of the users of this e-mail differently from ordinary e-mails. For example, the advertisement appears as an e-mail and can be deleted from the list, but :
- cannot be archived, modified or forwarded and cannot be replied to ;
- is not counted in the total number of emails in the inbox, nor does it take up storage space in the inbox.
StWL considered that this advertising practice involving the use of e-mail without the prior express consent of the recipient was contrary to the rules of unfair competition in that it constituted an “unacceptable nuisance” and was misleading within the meaning of the UWG, and brought an action for an injunction against eprimo before the Landgericht Nürnberg-Fürth (Regional Court of Nuremberg-Fürth, Germany).
This court granted StWL’s request and ordered eprimo, under penalty of a fine, to cease distributing such advertising in connection with electricity distribution to end consumers on the T-online.de e-mail account.
On appeal, the referring court considered that the conduct alleged against eprimo could be unlawful :
– under Article 7(2)(3) of the UWG, which transposes Article 13(1) of Directive 2002/58 (on commercial e-mail marketing); and
– under Article 7(2)(1) of the UWG, which transposes Annex I, point 26, of Directive 2005/29 (on unfair competition practices).
2. Displaying an advertisement in the guise of an e-mail constitutes direct marketing by e-mail subject to the prior consent of the users
2.1 According to the court, such messages are e-mails
Although technically, the placing of advertising under the appearance of an e-mail is not an e-mail as such, the Court considers that it is a practice equivalent to the sending of an e-mail which falls within the scope of application of Directive 2002/58/EC.
According to the Court, a broad and technologically evolving conception of the type of communications covered by this directive must be retained for the following reasons:
- Article 2(d) of Directive 2002/58 provides for a broad definition of the concept of “communication” which includes any information exchanged or conveyed between a finite number of parties by means of a publicly available electronic communications service;
- Recital 67 of Directive 2009/136, which amended Directive 2002/58, refers to its statement that the safeguards provided to subscribers against breaches of their privacy by unsolicited communications for direct marketing purposes by means of electronic mail “should also apply to SMS, MMS and other applications of a similar nature“;
- Recital 4 of Directive 2002/58 adds that this protection must be guaranteed “regardless of the technologies used”.
Moreover, for the court these messages are e-mails for the following reasons:
- Unlike advertising banners or pop-ups appearing in the margin of the list of private messages or separately from them, the appearance of advertising messages in the list of private e-mails of the user hinders access to these e-mails in a way similar to that used for unsolicited e-mails (also called “spam”);
- From the recipient’s perspective, the advertising message is displayed in a space normally reserved for private e-mail;
- The user can only free up this space to get an overview of his exclusively private e-mails after checking the content of the same advertising message and only after actively deleting it;
- If the user clicks on an advertisement such as the one at issue in the main proceedings, he is redirected to a website containing the advertisement in question, instead of continuing to read his private e-mails;
- Insofar as the advertising messages occupy lines in the inbox, there is a risk of confusion between advertising messages and private e-mails which could lead the user who clicks on the line corresponding to the advertising message to be redirected against his will to an Internet site containing the advertising in question, instead of continuing to consult his private e-mails.
Thus the inbox is the means by which the advertising messages concerned are communicated to this user.
Such a manner of proceeding constitutes use of electronic mail within the meaning of Article 13(1) of Directive 2002/58.
Furthermore, the Court adds that, in the light of the foregoing conditions, the question whether advertising messages meet the criteria for classification as ‘electronic mail’ within the meaning of Article 2(h)(*) of that directive becomes superfluous, in so far as they were communicated to the users concerned by means of their electronic mailboxes and, therefore, their electronic mail.
(*) “electronic mail” is defined as any message in the form of text, voice, sound or image sent via a public communications network that can be stored in the network or in the terminal equipment of the recipient until it is retrieved by the latter, and would have
2.2 It is a marketing communications which directly and individually reaches users, regardless of the fact that the recipient is randomly chosen
The Court considers that the very nature of the advertising messages at issue, which are aimed at promoting services, and the fact that they are disseminated in the form of an e-mail, so that they appear directly in the inbox of the private e-mail of the user concerned, make it possible to classify these messages as direct marketing communications within the meaning of Directive 2002/58.
The Court also points out that the fact that the recipient of those advertising messages is randomly chosen cannot call into question such a conclusion.
The random or predefined choice of recipient does not constitute a condition for the application of Article 13(1) of Directive 2002/58.
What matters is that there is a communication for commercial purposes which directly and individually reaches one or more users of electronic messaging services by being inserted into the inbox of the electronic mail account of those users.
The recipients of such advertising messages are individualized insofar as the user only obtains access to his or her inbox after providing registration data and a password. Therefore, the display takes place after this authentication procedure by the user in a private area reserved for him and intended for the consultation of private content in the form of e-mails.
2.3. The prior consent of the person is necessary
The Court recalls that, if a communication falls within the scope of Article 13(1) of Directive 2002/58, it is authorized on condition that the recipient has given prior consent.
3. This practice is also considers as unfair commercial practice
The referring court also asked whether such an approach falls within the concept of “repeated and unwanted solicitations” of users of e-mail services, within the meaning of Directive 2005/29 on unfair competition.
Thus, the Court had to answer the question whether the advertisements constituted solicitations and whether they were repeated and unwanted.
3.1. The appearance of these advertising messages also constitutes a solicitation within the meaning of the Unfair Commercial Practices Directive
Pursuant to Annex I, point 26, of Directive 2005/29, it is an “unfair commercial practice in all circumstances” for a trader to “make repeated and unwanted solicitations by telephone, fax, e-mail or any other means of distance communication, unless and in so far as permitted by national law for the purpose of performing a contractual obligation”.
However, as the Court has previously noted, the advertising messages at issue must be considered to be addressed directly and individually to the user concerned insofar as they appear directly in the inbox of the private electronic mailbox of the user concerned, in a private space, protected by a password, which is reserved for him and where he expects to receive only messages addressed individually to him.
As a result, the effect produced by the said message is therefore similar to that of individualized direct marketing, whether or not the advertiser has individualized this specific recipient during the technical preparation of the message in question and whether or not this message is treated differently from e-mails in terms of storage space and functionalities linked to the processing of a real e-mail.
Under these conditions, such an advertising message constitutes a “solicitation” of users of electronic messaging services, within the meaning of Annex I, point 26, of Directive 2005/29.
3.2 It is a repeated and unwanted solicitation
The Court considers that this is a repeated solicitation insofar as the users concerned received advertising messages in the inbox of their private electronic mailboxes on three occasions, namely, on 12 December 2016, 13 January 2017 and 15 January 2017 respectively.
In order to know whether it is an “unwanted” solicitation, it must be taken into account the existence or not of a prior consent given by such user as well as the possible opposition to such advertising process expressed by said user.
Thus, the solicitation can be qualified as “unwanted solicitation”, in the absence of a consent given by this user prior to this display.
In conclusion
The practice of advertising under the guise of an email is still subject to the regulation on direct marketing by electronic email and therefore requires the consent of users (article 13 of the directive 2002/58/EC).
The company behind the campaign can be attacked on the basis of unfair commercial practice by competitors and not only by the individuals concerned even though it is not in charge of carrying out the campaign.
However, the judgment does not say who would have been responsible from a RGPD/Directive 2002/58/EC point of view regarding the collection of consent. However, it can be assumed that the email provider would have had to obtain such prior consent and that a clause to this effect must be included in the contract in any case.
For any question, do not hesitate to contact Arnaud Blanc, French & UK qualified Lawyer
