Inbox advertising is direct advertising

Advertising in the form of messages displayed between private e-mails in free e-mail inboxes constitutes direct advertising within the meaning of the ePrivacy Directive (EU Directive 2002/58). This was recently decided by the ECJ. 

Messages were displayed as soon as the users of the e-mail service opened their inboxes; in this context, both the users concerned and the messages displayed were selected at random (an activity called "inbox advertising"). The only visual differences between the list of the account user's other e-mails and the ads were that the dates in the ads were replaced by the word "Advertisement", no sender was mentioned and the text appeared against a grey background.

According to the ECJ, these messages give rise to a likelihood of confusion which may prompt a user to click on the advertising message, only to be redirected against his/her will to a website containing the actual advertisement.

The ECJ pointed out that privacy must be protected from unsolicited communications for purposes of direct marketing, in particular communications disseminated by automated calling systems, fax machines and electronic mail as well as texting. This objective must be ensured regardless of the underlying technology.

In the case of direct advertising, the recipient’s consent must be obtained in advance and the recipient must be informed about the exact modalities for disseminating such advertising.

Just recently, we reported on direct marketing on social media as well as the draft ePrivacy Regulation, which, among other things, is to govern direct marketing via electronic channels, and will replace the abovementioned Directive. 

Thus, direct advertising is a multifaceted issue requiring a particularly careful and cautious approach.

Our Data Protection Team is standing ready to support you!

Left:

Press release on the ruling

Blog post ePrivacy Regulation

Blog post Direct advertising on social media