In an ongoing case before the Court of Justice of the European Union (European Court), the Advocate General (AG) has written a striking conclusion. Indeed, advertisements displayed between incoming emails should qualify as unsolicited direct marketing by email, according to the AG. Should the European Court share this view, consent will be required for this form of advertising.
Conditions
A case between two competing energy companies is currently playing out in Germany. One of the energy companies believes that the competitor illegally places advertisements in private mailboxes of users of a free online mail service, and started the case in the German courts. These ads are placed between the lines of incoming emails, but are designed differently. For example, the advertisement was placed on a gray background, was labeled with the word ''ad,'' and did not contain a date or a sender. In addition, the advertisement could not be edited, saved, forwarded or replied to and was not counted in the number of unread emails or the mailbox's storage space. The user of the mailbox where the advertising was detected did not appreciate the advertisements, and exercised his right to object to the advertising in the mailbox. In vain, because after some time the user still received advertisements.
Technical aspects
The technical operation of the ads is also of great importance to the lawsuit. The advertising was displayed randomly (i.e., not personalized or targeted) in the mailbox. When the user opened their mailbox in the browser, a request was sent to the server, then parameters were sent back to the browser and a randomly selected advertising banner was displayed. When the ad was clicked, it was registered in the server and the user was redirected to the advertiser's website.
The case proved difficult for the courts. At first instance, the court imposed a ban on carrying out the advertising any longer, but this ban was reversed on appeal. Meanwhile, the case is before the highest German court, which decided to put questions to the European Court. Two questions are most relevant here:
Can this form of advertising be considered an e-mail under the law?
If this advertising is considered e-mail, is it unsolicited direct marketing via e-mail?
If both questions were answered in the affirmative, this would mean that permission must be obtained for this form of advertising. The European Court has yet to address these questions, but the AG has now shared his opinion shared.
Can advertising be considered e-mail?
To legally qualify mailbox advertising as an e-mail, three criteria must be met:
First, the message must be " transmittedover a public communications network."
Second, it must "be (capable of being) storedin the network or in the recipient's terminal equipment."
Third, it must be retrievable by the recipient.
In this regard, there are two opposing perspectives when it comes to this form of advertising:
On one side is the opinion that this is not a classic e-mail, so it does not qualify as an e-mail. The advertisement is not sent by a user of the mailbox to another user, the advertisement is not stored in the network or terminal equipment because it is displayed temporarily AND the advertisement is not retrieved by the receiving user through an action (which is the case, for example, in regular e-mail when it is clicked on).
On the other side is the view also held by the AG. This entails not focusing on the classic aspects of e-mail, but on its functional nature. Indeed, by focusing on this, the principle of protecting the privacy of the user of an e-mail service is better met. The advertisement would then qualify as an e-mail because there is a flexible interpretation of the three criteria. First, the advertisement would then have already been sent because it was sent from a server and displayed in the mailbox, then the advertisement was also stored in the network because it was placed in the server, and finally the advertisement was retrieved from der server at the moment the user logs into his mailbox and thus opens the web page.
Is there unsolicited direct marketing via e-mail?
When these advertisements are considered a direct marketing expression via e-mail, the same rules apply to them as when sending "normal" commercial e-mails. That means that either consent is required or a valid customer relationship must have been established. The AG explicitly named that these rules are generally not intended for advertising banners that are displayed in a mailbox, but only refers to communications that directly and individually reach the recipient (as is usually the case with e-mail). But the AG believes that it is clear from the thinking behind the legislation that this should also be looked at more broadly. Thus, it would not only be direct marketing that reaches the recipient through the sending of e-mail, but also direct marketing that reaches the recipient through the use of e-mail. This would include not only emails that are actually sent, but also expressions that take place within the mail environment.
In this case, therefore, the AG finds that direct marketing via e-mail does occur. This is because the ads are displayed in a user's private mailbox (which can only be accessed with a password). This makes it look suspiciously like spam. In addition, the AG finds that it is not coincidental that the ads are shown among incoming emails which means that they should be viewed differently than advertising banners seen in the mailbox. Because the ads appear at the same level as the private emails, they demand the same attention that the private emails receive. As a result, the advertiser takes advantage of private mailboxes and the interest and trust that e mail service users place in them, partly because the ads resemble incoming emails. This also creates the danger of confusion between the ad and the emails, causing the user to "accidentally" click on the ad and be redirected to the advertiser's Web site without wanting to.
According to the AG, the design of the ads does not alter the conclusion that there is an invasion of user privacy. Because the ads appear in the same list as the private emails, their removal requires the same attention and actions as unwanted email (spam). Therefore, the degree of nuisance is similar. It is also irrelevant that the ad being displayed is randomly selected according to the AG. What is important, on the other hand, is that there are unsolicited commercial communications that reach users of e-mail services directly and individually by being displayed in the private mailbox of those users.
Ultimately, we can conclude that the AG believes that consent is required for this form of advertising in a private mailbox because it takes place through the use of e-mail and reaches the recipient directly and individually. But it remains to be seen whether the European Court shares this opinion.
