CJEU - C-102/20 - StWL Städtische Werke Lauf a.d. Pegnitz GmbH: Difference between revisions

Revision as of 14:02, 13 October 2022

CJEU - C-102/20 StWL Städtische Werke Lauf a.d. Pegnitz GmbH

Court:	CJEU
Jurisdiction:	European Union
Relevant Law:	Article 2(h) Directive 2002/58/EC Article 13(1) Directive 2002/58/EC
Decided:
Parties:	StWL Städtische Werke Lauf a.d. Pegnitz GmbH eprimo GmbH
Case Number/Name:	C-102/20 StWL Städtische Werke Lauf a.d. Pegnitz GmbH
European Case Law Identifier:	ECLI:EU:C:2021:954
Reference from:	BGH (Germany)
Language:	24 EU Languages
Original Source:	Judgement
Initial Contributor:	n/a

The Court of Justice of the European Union held that inbox advertising - the display of advertisements disguised as emails in an email inbox - requires the user's prior consent in order to be lawful.

English Summary

Facts

eprimo, a German electricity supplier, distributed advertisements consisting of displaying banners in the email inboxes of the T-Online free email service. When users opened their inbox, those advertisements were shown to them at random, indistinguishable from the list of emails in the users' inbox except for the fact that the date was replaced by the word ‘Anzeige’ (advertisement), no sender was mentioned and the text appeared against a grey background. When clicking on what looked like an email at first glance, the users were shown that advertisement. This procedure is known as inbox advertising.

Städtische Werke Lauf a.d Pegnitz GmbH (‘StWL’) is a competitor of eprimo and considered eprimo's inbox advertising unlawful under the rules of unfair competition because there was no prior consent by the users.

StWL, after at first succeeding with an action before the Regional Court of Nuremberg-Fürth, lost the case in the second instance before the Higher Regional Court of Nuremberg. When it appealed at the Federal Court of Justice (Bundesgerichtshof - BGH), the BGH referred the subject to the CJEU. In particular, it asked whether inbox advertising was compatible with the ePrivacy Directive and the Unfair Commercial Practices Directive which require consent for electronic mail that is sent to users for the purposes of direct marketing, prohibiting unsolicited communications.

Holding

The CJEU held that such inbox advertising is unlawful without prior consent according to the ePrivacy Directive and the Unfair Commercial Practices Directive.

First, the CJEU clarified that the process of inbox advertisements constitutes the use of communications for the purposes of direct marketing regardless of the recipients being chosen at random.

Then, it stated that the use of e-mails is allowed for the purposes of direct marketing only if the the recipient has given free, specific and informed consent. It emphasized the fact that such advertising messages do not need to reach any threshold of nuisance in order to be a significant burden on the user. According to the court, any display of the kind at hand constitutes a significant burden.

Finally, the CJEU found that the inbox advertisements are persistent and unwanted solicitations in the sense of the Unfair Commercial Practices Directive if the display is sufficiently frequent and regular as well as given without consent.

Comment

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 |Case_Number_Name=C-102/20 StWL Städtische Werke Lauf a.d. Pegnitz GmbH
-|ECLI=
+|ECLI=ECLI:EU:C:2021:954
 |Opinion_Link=
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 }}
-See Holding for questions referred.
+The Court of Justice of the European Union held that inbox advertising - the display of advertisements disguised as emails in an email inbox - requires the user's prior consent in order to be lawful.
 ==English Summary==
 === Facts ===
-Facts pending.
+eprimo, a German electricity supplier, distributed advertisements consisting of displaying banners in the email inboxes of  the T-Online free email service. When users opened their inbox, those advertisements were shown to them at random, indistinguishable from the list of emails in the users' inbox except for the fact that the date was replaced by the word ‘''Anzeige''’ (advertisement), no sender was mentioned and the text appeared against a grey background. When clicking on what looked like an email at first glance, the users were shown that advertisement. This procedure is known as inbox advertising.
-=== Holding ===
+Städtische Werke Lauf a.d Pegnitz GmbH (‘StWL’) is a competitor of eprimo and considered eprimo's inbox advertising unlawful under the rules of unfair competition because there was no prior consent by the users.
-<u>Questions referred:</u>
-'''1.''' Does the concept of ‘sending’ within the meaning of Article 2(h) of Directive 2002/58/EC cover a situation in which a message is not transmitted by a user of an electronic communications service, via a service provider, to the electronic ‘address’ of a second user, but, as a consequence of the opening of the password-protected web page of an email account, is automatically displayed by ad servers in certain areas designated for that purpose in the email inbox of a randomly selected user (inbox advertising)?
+StWL, after at first succeeding with an action before the Regional Court of Nuremberg-Fürth, lost the case in the second instance before the Higher Regional Court of Nuremberg. When it appealed at the Federal Court of Justice (Bundesgerichtshof - BGH), the BGH referred the subject to the CJEU. In particular, it asked whether inbox advertising was compatible with the ePrivacy Directive and the Unfair Commercial Practices Directive which require consent for electronic mail that is sent to users for the purposes of direct marketing, prohibiting unsolicited communications.
-'''2.''' Does the collection of a message within the meaning of Article 2(h) of Directive 2002/58/EC presuppose that, after becoming aware of the existence of a message, the recipient triggers the programmatically prescribed transmission of the message data by making an intentional collection request, or is it sufficient for the appearance of a message in an email account inbox to be triggered by the user opening the password-protected web page of his e-mail account?
+=== Holding ===
+The CJEU held that such inbox advertising is unlawful without prior consent according to the ePrivacy Directive and the Unfair Commercial Practices Directive.
-'''3.''' Does a message constitute electronic mail within the meaning of Article 13(1) of Directive 2002/58/EC even where it is not sent to an individual recipient already specifically identified prior to transmission but is displayed in the inbox of a randomly selected user?
+First, the CJEU clarified that the process of inbox advertisements constitutes the use of communications for the purposes of direct marketing regardless of the recipients being chosen at random.
-'''4.''' Is electronic mail used for the purposes of direct marketing within the meaning of Article 13(1) of Directive 2002/58/EC only where the user is found to be the subject of a burden that is greater than a nuisance?
+Then, it stated that the use of e-mails is allowed for the purposes of direct marketing only if the the recipient has given free, specific and informed consent. It emphasized the fact that such advertising messages do not need to reach any threshold of nuisance in order to be a significant burden on the user. According to the court, any display of the kind at hand constitutes a significant burden.
-'''5.''' Does individual advertising meet the conditions governing the presence of ‘solicitation’, for the purposes of the first sentence of point 26 of Annex I to Directive 2005/29/EC, only where a customer is contacted via a medium traditionally used for individual communication between a sender and a recipient, or is it sufficient if — as with the advertisement at issue in the case in point — an individual connection is established by the fact that the advertisement is displayed in the inbox of a private email account, and thus in an area in which the customer expects to find messages addressed to him personally?
+Finally, the CJEU found that the inbox advertisements are persistent and unwanted solicitations in the sense of the Unfair Commercial Practices Directive if the display is sufficiently frequent and regular as well as given without consent.
 == Comment ==