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CJEU Advocate General interprets direct marketing by email and targeted advertising and marketing underneath ePrivacy Directive | Allen & Overy LLP

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On 24 June 2021, the Advocate Common (AG) of the Courtroom of Justice of the European Union (CJEU) issued his viewpoint on the preliminary ruling request submitted by Germany’s Federal Court of Justice (Bundesgerichtshof) in scenario C-102/20 StWL Städtische Werke Lauf advert Pegnitz GmbH v. eprimo GmbH (the Feeling). The Feeling relates to the interpretation of Article 13(1) ePrivacy Directive in mix with the Unfair Professional Methods Directive, in relation to the exhibit of advertising messages in the inbox of end users of on line e-mail products and services.

The AG proposes that the screen of advertising and marketing messages amongst other emails in an on the net email inbox need to be interpreted as “email for immediate advertising and marketing purposes” and should be treated as unsolicited marketing, equivalent to a spam e-mail. The AG indicates that it is not pertinent irrespective of whether the recipients had been randomly selected, or no matter whether the recipients skilled stress, nuisance or inconvenience thanks to these promotion messages. Contrary to the advertisement banners that are displayed in the margins of the site and separately from the listing of the private e-mails, such advertising and marketing messages amongst other e-mail in the inbox are, in the AG’s check out, perceived as a private e mail by the user and may perhaps even have to have the similar actions by the person to be deleted from the inbox. These advertising messages for that reason impede the user’s privateness in the very same way as a spam or unsolicited marketing and advertising email. The Belief notes that it is for the Bundesgerichtshof to establish whether the user’s consent (to acquiring this variety of unsolicited communications) was educated, precise and freely provided, prior to the display of these promoting messages in a user’s inbox and not just as a banner different to the checklist of email messages in the inbox.

The AG also suggests the CJEU to consider the principle of “persistent and undesired solicitations by email” as one particular of the intense professional techniques inside the which means of the Unfair Business Procedures Directive – especially that the idea need to be interpreted to include the display screen of advertisements that resemble email messages in the user’s inbox. The AG implies that it is for the Bundesgerichtshof national courtroom to: (i) figure out whether or not the display of these marketing messages was sufficiently frequent and standard to qualify as ‘persistent’ solicitations and (ii) regardless of whether the display screen of this sort of messages can be experienced as ‘unwanted’ solicitations, having into account whether or not consent has been provided by the consumer prior to the exhibit of these types of information.

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