Digital Law Up(to)date: Display of advertising messages in electronic inbox similar to real emails constitutes unsolicited communication

EU Law

On 25 November 2021, the Court of Justice of European Union (“CJEU”) ruled (case C-102/20) that the display in the electronic inbox of advertising messages in a form similar to real email constitutes an unsolicited communication (article 13 of the directive 2002/58 on privacy and electronic communications). The CJEU finds that inbox advertising constitutes spamming. 

Firstly, the CJEU considered that the advertising was sent by e-mail (which is in fact not technically the case). It justified this by considering that the advertising pops up in an electronic inbox, directly in the list of emails, in the space normally reserved for private emails. This prevents the user from having an overview of their emails and creates confusion between private emails and advertising. It therefore argues that since the advertising appears in the electronic inbox, the inbox should be considered as the means of communication of the advertising.

Secondly, it states that in order to qualify as spam (unsolicited emails), it is sufficient to be faced with a communication for commercial purposes that directly and individually reaches users of an electronic communication service by being inserted into the electronic inbox. In other words, the location of the advertising seems to be decisive in the reasoning of the CJEU.

Finally, the CJEU states that inbox advertising is a persistent and unwanted solicitation within the meaning of Annex I, point 26, of the unfair commercial practices directive (directive 2005/29). Persistent character requires that the solicitation be sufficiently frequent and regular. In this case, according to the Court, the requirement is met by three inbox advertising messages received in 35 days.

This article was co-authored by Edouard Cruysmans in his capacity of Professional Support Lawyer at Stibbe.