EU Court Clarifies Direct Marketing and Soft Opt-In for Email Newsletters
The Court of Justice has ruled on the Inteligo Media case (C-654/23), addressing the use of unsolicited email newsletters, the ‘soft opt-in’ under the e-Privacy Directive, and the interaction between Directive 2002/58/EC and the GDPR. The case originated from a fine imposed by the Romanian data protection authority on Inteligo Media, which sent daily email newsletters to users who registered for free accounts on its online legal news platform.
Users who created free accounts accessed additional articles and received daily newsletters summarizing legislative updates with links to full content. These newsletters also promoted optional paid access to further content. Users had the option to opt out during registration or unsubscribe at any time. The referring court sought clarification on whether the email addresses were collected in the context of selling a product or service under Article 13(2) of the e-Privacy Directive, whether the newsletter qualified as ‘direct marketing,’ and if GDPR’s lawfulness conditions applied.
The Court determined that the newsletter qualifies as a communication for direct marketing purposes under Article 13(1)-(2) of the e-Privacy Directive, even though it contains editorial content, because it promotes paid services. It further ruled that email addresses collected during free account registration were obtained in the context of selling a service, as the free account was part of a broader economic model linked to paid content.
Additionally, the Court clarified that when the conditions of Article 13(2) are fulfilled, the GDPR’s general lawfulness requirements under Article 6(1) do not apply, since Article 13(2) provides a specific legal regime. The Court dismissed the question related to the term ‘commercial communication’ in national law as unnecessary, given that the newsletter already met the definition of direct marketing.
