ECJ ruling: Advertising must not disguise itself as e-mail

Status: 25.11.2021 11:44 a.m.

An e-mail service made advertisements from an electricity provider in the inbox of its users look like received e-mails. Against this, a competitor sued – and won the case at the European Court of Justice.

According to the court, the user must expressly consent in advance to advertisements in e-mail inboxes that are presented in a similar way to normal e-mails. Otherwise, the sending contradicts the EU guidelines for data protection and against unfair business practices, as the European Court of Justice (ECJ) in Luxembourg ruled. The occasion was a case from Germany.

So-called inbox advertising is structured like emails and appears when users check their emails. In the case of the free e-mail service from t-online, the date was “Advertisement” and the subject line consisted of a short advertising text. In addition, the text was highlighted in gray. The green electricity and gas provider eprimo had placed such inbox advertising on t-online. The municipal works in Lauf an der Pegnitz considered this to be unfair and complained. The Federal Court of Justice (BGH) in Karlsruhe submitted the dispute to the ECJ.

Inbox advertising is comparable to spam mail

The ECJ has now emphasized that the EU data protection directive generally aims to protect privacy from unsolicited advertising messages. This applies regardless of the medium and technology. Here an e-mail portal is used to reach users “directly and individually”. For this reason and because of the presentation similar to the mails, such advertising should be classified as “messages for the purpose of direct advertising”. Inbox advertising is therefore only permitted if users have given their express consent. Otherwise it is comparable to spam mails that are not permitted under data protection law.

If such advertisements appear frequently, this could also be “persistent and undesirable addressing” which is also prohibited under competition law. T-online offers its e-mail service for a fee with no advertising and free of charge. In the event of a dispute, the German courts would now have to clarify whether the users of the free service have consented to direct advertising.

File number: C-102/20

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