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The European Court of Justice ruled that inbox advertising is subject to the same restrictions as unwanted email advertising and requires the prior consent of the recipient (ECJ judgement made on 25. November 2021 – C-102/20 – press release).
Inbox advertising means that within an email inbox ads are displayed in a way that looks somehow similar to ‘normal’ emails. In the ECJ case the ads were visually different from the account holder’s other e-mails as the date was replaced by “Advertisement” and that no sender was indicated and the text was grayed out. The subject line of the list entry contained text advertising advantageous prices for electricity and gas. Overall, there has been clearly a chance to distinguish the ads from normal emails.
Nonetheless, the court held that these inbox ads constitute a likelihood of confusion and a user might click on the ad and is redirected against his or her will to an internet page containing advertising. The Court pointed out that the underlying Directive 2002/58 aims to protect the users’ privacy against unsolicited commercial communications, in particular by automatic calling systems, fax machines and emails. According to the court this objective must be ensured regardless of the underlying technology. Therefore a broad and, from a technological point of view, evolvable notion of the type of communications covered by the directive has to be applied.
By emphasising the…
