the matter at hand
Städtische Werke Lauf a.d. Pegnitz GmbH (“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. The advertisement appeared in the private email inboxes of randomly chosen T-Online users as an ordinary e-mail. However, it differed from ordinary emails in the sense that the advertising message could be deleted from the list, but could not be archived, altered or forwarded. In addition, it was not possible to reply to it. Finally, the advertising message was not counted amongst the total number of emails in the inbox, and nor does it take up storage space.
StWL considered that this advertising practice, fell under the concept of use of email without the recipient’s express prior consent and, therefore, was contrary to the rules of unfair competition law. On that basis, StWL commenced an action against eprimo before the Landgericht Nürnberg-Fürth (Regional Court, Nuremberg-Fürth, Germany). That court upheld StWL’s application and ordered eprimo to cease the advertising practice. In appeal, the Oberlandesgericht Nürnberg (Higher Regional Court, Nuremberg, Germany) considered that the contested placement of advertising in the private email inboxes of T-Online users did not constitute an unlawful commercial practice.
The referring court, the Bundesgerichtshof (Federal Court of Justice, Germany), having doubts as to whether several articles in the E-Privacy Directive and the Unfair Commercial Practices DirectiveDirective No 2005/29/EC of the European Parliament and of the Council of 11 May 2005 concerning unfair business-to-consumer commercial practices in the internal market were correctly interpreted, asked the ECJ to clarify the criteria governing the concept of ‘electronic mail’, within the meaning of Article 2(h) of the E-Privacy Directive and the concept of ‘use’ of the latter for the purposes of direct marketing within the meaning of Article 13(1) thereof. In addition, the referring court asked the ECJ to specify the criteria for ‘solicitation’, within the meaning of point 26 of Annex I to the Unfair Commercial Practices DirectiveDirective No 2005/29/EC of the European Parliament and of the Council of 11 May 2005 concerning unfair business-to-consumer commercial practices in the internal market.
the judgment of the ecj
First, the ECJ recalls that the E-Privacy Directive seeks to protect subscribers against intrusion into their privacy by unsolicited communications for the purpose of direct marketing, in particular by means of automated calling machines, telefaxes and electronic e-mails. That objective must be ensured regardless of the technologies used, meaning that the E-Privacy Directive must be interpreted broadly to take account of evolving technologies (paragraph 39).
Secondly, the ECJ considers that the nature of the advertising messages at issue, which promote services of advertisers in the form of an email, allows these messages to be classified as “communications for the purposes of direct marketing, within the meaning of Article 13(1) of Directive 2002/58” (paragraph 48). The fact that the recipient is chosen randomly is according to the ECJ irrelevant. The ECJ states that what is relevant is: “that there is a communication for a commercial purpose, which reaches, directly and individually, one or more email service users by being inserted in the inboxes of those users’ email accounts” (paragraph 50).
Thirdly, the ECJ states that a communication used for the purpose of direct marketing falling within the scope of Article 13(1) of the E-Privacy Directive, requires prior consent of the recipient (paragraph 52). Such consent must be specific, informed and freely given on the basis of the GDPR. The ECJ notes that the T-Online email services are offered to its users in the form of two categories: (i) a free e-mail service funded by advertising and (ii) a paid-for e-mail service, without advertising. The ECJ states that it is for the referring court to determine whether the user who opted for the free category of the T-Online e-mail service, has been duly informed of the means by which such advertising is distributed, and actually consented to receiving advertising messages such as those at issue in the main proceedings (paragraph 59).
Fourthly, the ECJ considers that it is sufficiently clear that the advertising activities at issue constitute a genuine burden for the users. The ECJ considers: “the appearance of advertising messages within the list of the user’s private emails in a manner similar to that used for unsolicited emails (spam), requires the same decisions to be taken by the subscriber as regards the processing of those messages” (paragraph 62).
The ECJ concludes that the answer to the questions relating to the E-Privacy Directive is: “that Article 13(1) of Directive 2002/58 must be interpreted as meaning that the display, in the inbox of an electronic mail service user, of advertising messages in a form similar to that of real emails, and placed in the same position as those emails, without the fact that recipients are randomly determined or an assessment of the level of intensity and burden imposed on that user being relevant in that regard, constitutes ‘use of … electronic mail for the purposes of direct marketing’, such use being allowed only on the condition that the user was clearly and specifically informed of the distribution methods of such advertising, including within the list of private emails received, and indicated his or her specific and fully informed consent to receive such messages” (paragraph 63).
Finally, the ECJ concludes that the advertising service at hand “falls under the scope of the concept of ‘persistent and unwanted solicitations’ of users of email services, within the meaning of Annex I, point 26 of the Unfair Commercial Practices DirectiveDirective No 2005/29/EC of the European Parliament and of the Council of 11 May 2005 concerning unfair business-to-consumer commercial practices in the internal market, if the display of those advertising messages is, (i) sufficiently frequent and regular to be classified as ‘persistent solicitations’ and, (ii) may be classified as ‘unwanted solicitations’ in the absence of consent having been given by that user prior to that display” (paragraph 75).