Legal context: anti-spam rules
Article 13(1) of the ePrivacy Directive contains a ban on spam: “The use of […] electronic mail for direct marketing purposes may only be authorized with respect to subscribers or users who have given their prior consent”. “Email” itself is defined as “any text, voice, sound or visual transmitted over a public communications network which may be stored in the network or in the recipient’s terminal equipment until collected by the recipient” (Art. 2(h) ePrivacy Directive).
Recital 40 of that Directive provides additional context, indicating that “Safeguards should be provided to subscribers against invasion of their privacy by unsolicited communications for direct marketing purposes, including through […] emails […]. These forms of unsolicited commercial communications can, on the one hand, be relatively easy and inexpensive to send and, on the other hand, impose a burden and/or cost on the recipient..
In other words, there must be commercial communication, it must be done using some type of medium (in particular electronic mail, which may include electronic mail, but for example also direct messaging, SMS, etc.) and it must be unsolicited in order to be prohibited.
Is such an announcement “electronic mail”?
In this case, the Court considered that the announcement had been sent by way of e-mail – one of these means of commercial communication – although no e-mail was actually sent to the user. Why?
The Court gave the following reasons (paragraphs 38-45):
- From the user’s point of view, the ad is displayed in a space normally reserved for private emails, and the user can only “release” this space to have a “preview” of their emails exclusively private after reviewing the content of the ad and actively removing it;
- Unlike banner ads and pop-ups, which appear in the margins of, or separately from, the direct message listing, the appearance of advertisement messages here “prevents access” to these emails” in an analogous manner. to that used for unsolicited messages”. e-mails (also called “spam”);
- There is a risk of confusion between private e-mails and these advertisements;
- Because they appear in the user’s inbox, “this inbox must be considered to be the means by which the advertising messages in question are communicated to this user, which involves the use of his e- mail for direct marketing purposes”.
This reasoning is unusual and, in our view, questionable. From a technical standpoint, we see no justification for treating this form of ad differently than any other type of banner, as it follows the exact same technical process from request to display. The CJEU seems to suggest, however, that because this advertisement looks like an e-mail and is among other e-mails, it falls within the scope of anti-spam rules. Although the anti-spam rules of the ePrivacy Directive are squarely based on the idea of means of communication, the CJEU suggests that the technical means do not matter, only the impression that the final result creates.
Yet, if it is spam, the CJEU’s reasoning raises more questions. If a banner sits above a user’s email list, it inevitably forces the user to scroll down or get rid of the banner before the user can access their emails. Would the CJEU consider these banners as spam? And if an advertisement is injected between messages in a messaging service or on a private section of a web forum, doesn’t that also appear in a way analogous to private messages and in a way that prevents the to the next message (while also being in the “inbox” itself)?
In other words, these paragraphs seem to be driven by the conclusion sought rather than by the applicable legal principles, the impression being that the CJEU felt the need to conclude that it was spam.
Even having reached this conclusion, the reasoning of the CJEU raises other questions.
In paragraphs 50 and 51, the CJEU indicates that for the application of the anti-spam rules, it does not matter whether the advertisement is addressed to predetermined and individually identified recipients (= sent to user A and user B) or whether it is a “massive and random” mailing to several recipients (= sent to X people via an advertising network). “What matters is that there is a communication for commercial purposes that directly and individually reaches one or more users of email services by being inserted into the inbox of the email account of these users”, says the CJEU. This implies that any form of advertisement, whether it is a pop-up banner or personalized advertisement, is spam if it appears in the inbox.
One can’t help but wonder if this creates an unfortunate excuse for authorities to consider that any digital advertising solution should require consent under anti-spam rules, as soon as the end result is likely to appear in relation with email. If the CJEU considers that what matters is not how the advertisement reaches the user but where it appears, then any email or messaging service provider could potentially be required to obtain on behalf third party consent to the advertisements it will display, before these advertisements may be shown. While the CJEU seems to tie its particular reasoning to ads appearing “in the inbox”, who knows how far authorities will try to push the idea?
3 ads in 35 days – “persistent and unwanted solicitations”?
Another consequence of classifying these advertisements as “e-mail” is that it becomes very easy for competitors to obtain a cease and desist order against any advertiser whose advertisements are served through such a mechanism.
The Unfair Commercial Practices Directive (2005/29/EC) prohibits aggressive commercial practices such as “[m]make persistent and unwanted solicitations by telephone, fax, e-mail or other remote media”. Advertisements are inevitably “solicitations”, and e-mail is on the list of ways to make such solicitations. Given that the CJEU considered these to be “electronic mail” and the CJEU linked the “unwanted” criterion to the consent requirement under the anti-spam rules, the only question was whether the ads were “persistent”.
In the present case, the users in question had “received” such advertisements on three occasions in 35 days, and the CJEU found that this was sufficient to meet the requirement of “persistent” solicitations. In the context of telemarketing or actual advertising by e-mail, the CJEU’s approach takes on its full meaning. In the world of online advertising, however, this seems to be very restrictive. Using the instant messaging example highlighted earlier, it’s not uncommon for users of social media, web forums, or messaging services to see the same advertisement on a regular basis. Would two ads in the same week (let alone the same day) then be “persistent”?
Conclusion (based on the above)
On a personal level, we find the judgment of the CJEU very regrettable, as it seems to have overlooked the real objective of the legislation and only considered the impression given to the user, not the underlying means used to present an ad. This leaves a bitter taste of subjectivity where one would have expected an objective approach.
This raises important questions for the commercial viability of advertising-supported communication services. When does an announcement “prevent access” to messages? When does an announcement appear to be “in the inbox” and what is the risk of a court going beyond the idea of an inbox? Will advertisers pay to run ads on these services, knowing that a court can order a ban on abstaining after only three displays of the same ad?
Conclusion-driven judgment is never good for legal certainty, and we fear that the CJEU’s approach here will set a dangerous precedent for the world of online advertising. At least, that’s what it is looks like – maybe the next online advertising case will show what the relevant means of legal reasoning should be.
Shutdown is currently only available in French and in German. All citations from the judgment here are our own rough translation from the French version. Other language versions will be available from the case on the CJEU website.