OPINION OF ADVOCATE GENERAL
RICHARD DE LA TOUR
delivered on 24 June 2021 (1)
Case C‑102/20
StWL Städtische Werke Lauf a.d. Pegnitz GmbH
v
eprimo GmbH
in the presence of
Interactive Media CCSP GmbH
(Request for a preliminary ruling from the Bundesgerichtshof (Federal Court of Justice, Germany))
(Reference for a preliminary ruling – Directive 2002/58/EC – Processing of personal data and the protection of privacy in the electronic communications sector – Advertising message inserted into the inbox of a user of an email service – Article 2(h) – Concept of ‘electronic mail’ – Article 13(1) – Concept of ‘use of electronic mail for the purposes of direct marketing’ – Directive 2005/29/EC – Unfair commercial practices – Point 26 of Annex I – Concept of ‘persistent and unwanted solicitations by electronic mail’)
I. Introduction
1. The request for a preliminary ruling concerns the interpretation of Article 2(h) and Article 13(1) of Directive 2002/58/EC of the European Parliament and of the Council of 12 July 2002 concerning the processing of personal data and the protection of privacy in the electronic communications sector (Directive on privacy and electronic communications), (2) as amended by Directive 2009/136/EC of the European Parliament and of the Council of 25 November 2009 (3) (‘Directive 2002/58’), and of point 26 of Annex I to Directive 2005/29/EC of the European Parliament and of the Council of 11 May 2005 concerning unfair business-to-consumer commercial practices in the internal market and amending Council Directive 84/450/EEC, Directives 97/7/EC, 98/27/EC and 2002/65/EC of the European Parliament and of the Council and Regulation (EC) No 2006/2004 of the European Parliament and of the Council (‘Unfair Commercial Practices Directive’). (4)
2. That request has been made in proceedings between StWL Städtische Werke Lauf a.d. Pegnitz GmbH (‘StWL’) and eprimo GmbH, two companies supplying electricity to final customers, concerning the compatibility with national legislation on unfair competition of advertising by Interactive Media CCSP GmbH (‘Interactive Media’), at the request of eprimo, consisting in displaying advertising messages in the inboxes of users of the free email service ‘T-Online’.
3. The advertising technique at issue in the main proceedings is difficult to classify since, on the one hand, it is technically different from email but, on the other hand, from the recipient’s point of view, it is very similar to unsolicited email (spam), the main target of the objective of protection referred to inter alia in Article 13(1) of Directive 2002/58.
4. In this Opinion, I shall propose, in the first place, that the Court rule that Article 13(1) of Directive 2002/58 should be interpreted as meaning that ‘use of … electronic mail for the purposes of direct marketing’, within the meaning of that provision, covers displaying in the inbox of an email service user advertising messages in a similar form to that of emails and in the same place as the latter, that the random selection of the recipients of such messages has no relevance in that regard and that there is no need to find that the user is the subject of a burden that is greater than a nuisance. It is for the national court to determine whether that user has given consent that is, at least, freely given, specific and informed, prior to such advertising messages being displayed in the inbox of his email account.
5. In the second place, I shall suggest that the Court consider that the concept of ‘persistent and unwanted solicitations by … email’, within the meaning of point 26 of Annex I to Directive 2005/29, should be interpreted as meaning that it may cover practices such as those at issue in the main proceedings, consisting in displaying in the inbox of a user of an email service advertising messages in a similar form to that of emails and in the same place as the latter. It is, however, for the national court to determine, first, whether those advertising messages were displayed sufficiently frequently and regularly to be described as ‘persistent’ solicitations and, secondly, whether the display of those messages can be described as ‘unwanted’ solicitations, in view of whether or not consent had been given by that user prior to such display and whether or not that user had objected to such an advertising procedure.
II. Legal framework
A. EU law
1. Directive 2002/58
6. Recitals 4 and 40 of Directive 2002/58 read:
‘(4) Directive 97/66/EC of the European Parliament and of the Council of 15 December 1997 concerning the processing of personal data and the protection of privacy in the telecommunications sector [(5)] translated the principles set out in Directive 95/46/EC [of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data [(6)] into specific rules for the telecommunications sector. Directive [97/66] has to be adapted to developments in the markets and technologies for electronic communications services in order to provide an equal level of protection of personal data and privacy for users of publicly available electronic communications services, regardless of the technologies used. That Directive should therefore be repealed and replaced by this Directive.
…
(40) Safeguards should be provided for subscribers against intrusion of their privacy by unsolicited communications for direct marketing purposes in particular by means of automated calling machines, telefaxes, and emails, including SMS messages. These forms of unsolicited commercial communications may on the one hand be relatively easy and cheap to send and on the other may impose a burden and/or cost on the recipient. Moreover, in some cases their volume may also cause difficulties for electronic communications networks and terminal equipment. For such forms of unsolicited communications for direct marketing, it is justified to require that prior explicit consent of the recipients is obtained before such communications are addressed to them. The single market requires a harmonised approach to ensure simple, [Union-wide] rules for businesses and users.’
7. Article 2 of Directive 2002/58, entitled ‘Definitions’, provides:
‘Save as otherwise provided, the definitions in Directive [95/46] and in Directive 2002/21/EC of the European Parliament and of the Council of 7 March 2002 on a common regulatory framework for electronic communications networks and services (Framework Directive) [(7)] shall apply.
The following definitions shall also apply:
…
(d) “communication” means any information exchanged or conveyed between a finite number of parties by means of a publicly available electronic communications service. This does not include any information conveyed as part of a broadcasting service to the public over an electronic communications network except to the extent that the information can be related to the identifiable subscriber or user receiving the information;
…
(f) “consent” by a user or subscriber corresponds to the data subject’s consent in Directive [95/46 (8)];
…
(h) “electronic mail” means any text, voice, sound or image message sent over a public communications network which can be stored in the network or in the recipient’s terminal equipment until it is collected by the recipient;
…’
8. Article 13 of Directive 2002/58, entitled ‘Unsolicited communications’, provides:
‘1. The use of automated calling and communication systems without human intervention (automatic calling machines), facsimile machines (fax) or electronic mail for the purposes of direct marketing may be allowed only in respect of subscribers or users who have given their prior consent.
2. Notwithstanding paragraph 1, where a natural or legal person obtains from its customers their electronic contact details for electronic mail, in the context of the sale of a product or a service, in accordance with Directive [95/46], the same natural or legal person may use these electronic contact details for direct marketing of its own similar products or services provided that customers clearly and distinctly are given the opportunity to object, free of charge and in an easy manner, to such use of electronic contact details at the time of their collection and on the occasion of each message in case the customer has not initially refused such use.
3. Member States shall take appropriate measures to ensure that unsolicited communications for the purposes of direct marketing, in cases other than those referred to in paragraphs 1 and 2, are not allowed either without the consent of the subscribers or users concerned or in respect of subscribers or users who do not wish to receive these communications, the choice between these options to be determined by national legislation, taking into account that both options must be free of charge for the subscriber or user.
4. In any event, the practice of sending electronic mail for the purposes of direct marketing which disguise or conceal the identity of the sender on whose behalf the communication is made, which contravene Article 6 of Directive 2000/31/EC [of the European Parliament and of the Council of 8 June 2000 on certain legal aspects of information society services, in particular electronic commerce, in the Internal Market (“Directive on electronic commerce”) (9)] which do not have a valid address to which the recipient may send a request that such communications cease or which encourage recipients to visit websites that contravene that Article shall be prohibited.
…’
2. Directive 2005/29
9. Recital 17 of Directive 2005/29 reads:
‘It is desirable that those commercial practices which are in all circumstances unfair be identified to provide greater legal certainty. Annex I therefore contains the full list of all such practices. These are the only commercial practices which can be deemed to be unfair without a case-by-case assessment against the provisions of Articles 5 to 9. The list may only be modified by revision of the Directive.’
10. Article 5 of Directive 2005/29 provides:
‘1. Unfair commercial practices shall be prohibited.
2. A commercial practice shall be unfair if:
(a) it is contrary to the requirements of professional diligence,
and
(b) it materially distorts or is likely to materially distort the economic behaviour with regard to the product of the average consumer whom it reaches or to whom it is addressed, or of the average member of the group when a commercial practice is directed to a particular group of consumers.
…
4. In particular, commercial practices shall be unfair which:
(a) are misleading as set out in Articles 6 and 7,
or
(b) are aggressive as set out in Articles 8 and 9.
5. Annex I contains the list of those commercial practices which shall in all circumstances be regarded as unfair. The same single list shall apply in all Member States and may only be modified by revision of this Directive.’
11. Article 8 of Directive 2005/29 provides:
‘A commercial practice shall be regarded as aggressive if, in its factual context, taking account of all its features and circumstances, by harassment, coercion, including the use of physical force, or undue influence, it significantly impairs or is likely to significantly impair the average consumer's freedom of choice or conduct with regard to the product and thereby causes him or is likely to cause him to take a transactional decision that he would not have taken otherwise.’
12. Annex I to that directive contains the list of ‘commercial practices which are in all circumstances considered unfair’. Among the ‘aggressive commercial practices’, point 26 mentions ‘making persistent and unwanted solicitations by telephone, fax, email or other remote media except in circumstances and to the extent justified under national law to enforce a contractual obligation. This is without prejudice to … Directives [95/46] and [2002/58]’.
B. German law
13. Paragraph 3(1) and (2) of the Gesetz gegen den unlauteren Wettbewerb (Law against unfair competition) (10) of 3 July 2004, in the version applicable in the dispute in the main proceedings, provides:
‘(1) Unfair commercial practices shall be unlawful.
(2) Commercial practices addressed to or reaching consumers are unfair where they do not meet the level of diligence required of undertakings and are likely to materially distort the economic behaviour of consumers.’
14. Paragraph 5a(6) of the UWG provides:
‘Unfairness also occurs … where the commercial intent of a commercial practice is not identified, unless this is directly apparent from the context, and where such failure to identify the commercial intent is likely to cause the consumer to take a transactional decision which he would not have taken otherwise.’
15. Paragraph 7(1) and (2) of the UWG reads as follows:
‘(1) Commercial practices which cause unacceptable nuisance to a market participant shall be unlawful. That applies in particular to advertising that takes place although it is clear that the market participant concerned does not want it.
(2) Unacceptable nuisance must always be assumed in the case of:
1. advertising using a means of commercial communication for distance marketing not listed in points 2 and 3 of this provision, whereby a consumer is persistently solicited although he clearly does not want this;
…
3. advertising using an automated calling machine, a fax machine or electronic mail, without the express prior consent of the recipient, or
4. advertising in the form of a message
(a) where the identity of the sender on whose behalf the communication is made is disguised or concealed …
…’
16. Under Paragraph 8 of the UWG:
‘(1) Where a person engages in an unlawful commercial practice under Paragraphs 3 or 7, an action to eliminate that unlawful practice may be brought against that person and, where there is a risk of recurrence, an action to obtain a prohibitory injunction. The right to seek a prohibitory injunction exists where such a practice in breach of Paragraph 3 or Paragraph 7 threatens to occur.
(2) Where infringements are committed in an undertaking by an employee or an agent, an action to eliminate the practice and an action for an injunction may also be brought against the owner of the undertaking.
(3) The rights under subparagraph 1 shall be conferred on:
1. any competitor;
…’
III. The dispute in the main proceedings and the questions referred
17. StWL and eprimo are two competing electricity suppliers. At the request of eprimo, Interactive Media, an advertising agency, inserted advertisements in the electronic mailboxes of users of T-Online, a free email service.
18. Advertising messages reading ‘save more with eprimo’ appeared in the private electronic mailbox of a user of T-Online, specifically, in the inbox – the section where incoming emails are listed – interspersed among the incoming emails. Unlike those emails, the advertisement, containing the word ‘advertisement’, appeared against a grey background, it did not indicate either a date or a sender, it could not be archived or forwarded, nor was it possible to reply to it using the email processing options supplied by the email service provider. Moreover, it was not included among the unread emails and did not take up any storage space in the inbox. That user sent a letter of formal notice to eprimo on 20 December 2016 concerning an advertisement of 12 December 2016, and thus he expressly notified eprimo of his wish not to receive such advertisements. Advertisements of the same type nonetheless appeared in his inbox on 13 and 15 January 2017.
19. The advertising messages at issue in the main proceedings are displayed in the inboxes of users of the email service on a random basis. As a consequence of the opening of the web page of an email account, a request (AdRequest) is sent to the ad server, which then sends the corresponding parameters to the user’s internet browser, causing a randomly selected advertising banner to display in the inbox of that account. If the user clicks on the advertisement displayed, the input is conveyed to the ad server, which records it and redirects the browser to the advertiser’s website.
20. When the matter was referred to it by StWL, which considered that that advertising method infringed competition law since it constituted an unacceptable nuisance and was misleading, the Landgericht Nürnberg-Fürth (Regional Court, Nuremberg-Fürth, Germany) ordered eprimo to refrain, in the course of trade and for the purposes of competition, from engaging in advertising via the T-online email account in connection with the sale of electricity to final consumers.
21. The appeal brought by eprimo before the Oberlandesgericht Nürnberg (Higher Regional Court, Nuremberg, Germany) was granted, since that court considered that the contested placing of advertising in the inbox of a user of an email service did not constitute an unlawful commercial practice under competition law.
22. The Oberlandesgericht Nürnberg (Higher Regional Court, Nuremberg) ruled, first, that the advertising at issue did not constitute an unacceptable nuisance involving the use of electronic mail, within the meaning of Paragraph 7(2)(3) of the UWG, since that advertising could not be regarded as electronic mail within the meaning of that provision. In any event, that advertising did not entail for the user of the email service any charges or costs greater than the ‘normal’ nuisance occasioned by any advertising and did not therefore cause unacceptable nuisance within the meaning of the general provision contained in the first sentence of Paragraph 7(1) of the UWG, in particular since the email service was provided free of charge.
23. Secondly, that court found that the advertising at issue was not unlawful under Paragraph 7(2)(4)(a) of the UWG, since it was not advertising in the form of messages. Nor was Paragraph 7(2)(1) of the UWG applicable, since it presupposes ‘solicitation’, in the sense of a practice inconveniencing a consumer, which is not so in the present case. Lastly, the advertisements at issue could not be considered to be unfair on the ground that they were misleading, within the meaning of Paragraph 5a(6) of the UWG, since they did not conceal the fact that they were advertisements.
24. Hearing an appeal on a point of law brought before it by StWL, the Bundesgerichtshof (Federal Court of Justice, Germany) considers that its answer to the question whether a right exists to obtain a prohibitory injunction in respect of the practice at issue depends on the interpretation of Article 2(d) and (h) and Article 13(1) of Directive 2002/58 and of point 26 of Annex I to Directive 2005/29, and also of the concepts of ‘electronic mail’, ‘use’ and ‘solicitation’.
25. According to the national court, the conduct of which eprimo is accused may be unlawful under Paragraph 7(2)(3) of the UWG, which transposes Article 13(1) of Directive 2002/58. It states that it is also possible that the advertising is unlawful under Paragraph 7(2)(1) of the UWG, which transposes point 26 of Annex I to Directive 2005/29.
26. Initially, with regard to the part of the accusation relating to the application of Paragraph 7(2)(3) of the UWG, which transposes Article 13(1) of Directive 2002/58, the national court seeks to obtain from the Court clarifications concerning the concepts of ‘electronic mail’ and the ‘use’ of electronic mail for the purposes of direct marketing.
27. In order to determine whether the advertising at issue is covered by the concept of ‘electronic mail’, that court states, first of all, that the message that was sent in real time by the operator of the ad server to the email account inbox as a consequence of that web page being opened by the user using the login and displayed on that page, where it could be read by that user, constitutes a ‘communication’, within the meaning of Article 2(d) of Directive 2002/58. The national court then, considers that it is necessary to determine whether an advertising message such as that at issue in the main proceedings may be described as ‘electronic mail’ within the meaning of Article 2(h) of that directive.
28. In that regard, it enquires about the ‘sending’ of the message mentioned in that provision. The inbox advertising is not transmitted by one user of an email service to another user, but is displayed by ad servers, as a consequence of the opening of the email account, in specific spaces designated for that purpose in the inbox of a randomly selected user. Applying the criteria of a traditional email, there may be no ‘sending’ of the message, so the advertisement appearing in that inbox could not be described as ‘electronic mail’. However, the national court enquires whether the objective of protection of the user’s privacy, stated in recital 40 and pursued by Article 13(1) of Directive 2002/58, might not militate in favour of a functional rather than a technical approach to the definition of ‘sending’. That objective might justify interpreting the concept of ‘sending’, not by reference to traditional forms of electronic communication, that is to say, in the sense of the transmission from one user to another previously designated user, but, in a functional manner, in the sense of distribution.
29. Furthermore, the national court enquires about the definition of the concept of ‘collection’ appearing in Article 2(h) of Directive 2002/58. According to that court, that provision, read in conjunction with recital 27 of Directive 2002/58, (11) indicates that collection of the message presupposes a conscious act on the part of the recipient, who, by opening his email account, shows he is willing for his emails stored on the server of the email service to be displayed and transmitted to him; however, as regards the advertising at issue, which is stored on an ad server controlled by the company that distributes it, the user has only to open the email service in order for the advertising banner to be displayed in real time, without the user being aware that this process is under way or being able to opt for or against the display. In short, ‘collection’ as referred to in Article 2(h) of Directive 2002/58 involves the user performing an operation with the purpose of transmitting a message, generally from the service provider’s server. However, that court considers that Article 13(1) of Directive 2002/58 seeks to protect the user against unsolicited advertising communications and, consequently, to regard opening the email account on the website as being sufficient to constitute completion of the collection.
30. The national court points out moreover that, until the point at which its insertion into the inbox was triggered by the login, the advertising at issue was stored on an ad server and therefore in the network. In the view of the national court, it cannot be inferred from recital 27 of Directive 2002/58 that ‘electronic mail’ covers only messages stored on the service provider’s own server.
31. The national court also enquires whether a message constitutes ‘electronic mail’, within the meaning of Article 13(1) of Directive 2002/58, where it is not transmitted to an individual recipient already specifically identified before transmission, but, as in the present case, is displayed randomly. The national court notes in that regard that the advertising at issue was displayed to customers of the free email service on a random basis, ruling out the possibility of any prior communication with regard to the customer’s consent. Since that was the case, it takes the view that it cannot be inferred from the prior consent requirement laid down in that provision that all forms of direct marketing conducted over communication networks are lawful where, on account of the technological processes used by the advertiser, the consent of email service users cannot be obtained before an advertisement is displayed.
32. The national court also takes the view that the concept of ‘use’ of electronic mail, within the meaning of Article 13(1) of Directive 2002/58, should be defined, and enquires whether, in order to be covered by that concept, the ‘burden’ (12) imposed on the user should be greater than a nuisance. In that regard, it states that, since the advertising at issue has the appearance of an email and is therefore more noticeable than advertising outside the inbox, the degree of nuisance it represents is greater than that of advertising displayed at the edges of the inbox, and that, in those circumstances, the objective of protecting users’ privacy may not be met.
33. Secondly, with regard to the part of the accusation concerning the application of Paragraph 7(2)(1) of the UWG, which transposes point 26 of Annex I to Directive 2005/29, the national court considers that the requirements for ‘solicitation’, within the meaning of that provision, need to be clarified. According to that court, solicitation is excluded where the communication is addressed to the general public. It presupposes the opposite, the targeting of advertising at an individual customer. In that regard, the national court enquires whether, for there to be individually targeted advertising meeting the conditions governing solicitation, it is necessary that a customer should be contacted via a medium traditionally used for individual communication between a sender and a recipient, such as telephone, fax or email, or whether it is sufficient if, as in the present case, the connection with a user is established by the fact that the advertisement is displayed in the inbox of his email account, that is to say, in an area in which the customer expects to find messages addressed to him personally.
34. According to the national court, since inbox advertising represents a greater nuisance to the user than conventional banner advertising, which, since it appears in those areas of a web page that are usually designated for that purpose, do not have the same individual character, the protective objective of point 26 of Annex I to Directive 2005/29 is probably impacted too.
35. Furthermore, the national court considers that the other requirements for the practice prohibited by that provision to exist are met. It states, in that regard, that the user of the email service was solicited three times in total, that is to say, on several occasions and therefore persistently, by advertising inserted in the inbox of his email account. Such advertising was unwanted since the user had expressly notified eprimo of his wish not to receive advertising messages such as those at issue in the main proceedings.
36. In those circumstances, the Bundesgerichtshof (Federal Court of Justice) decided to stay the proceedings and refer the following questions to the Court of Justice for a preliminary ruling:
‘(1) Does the concept of “sending” within the meaning of Article 2(h) of Directive [2002/58] 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)?
(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?
(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?
(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?
(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], 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?’
37. Interactive Media, eprimo, the Portuguese Government and the European Commission submitted written observations. StWL, Interactive Media, eprimo and the Commission responded within the time allowed to the questions posed by the Court, which were to be answered in writing.
IV. Analysis
38. This request for a preliminary ruling asks the Court to give a ruling on whether, and if so under what circumstances, a practice whereby advertising messages are displayed in the inbox of a user of an email service, which is provided free to that user and which is funded by the advertising paid for by the advertisers, may be regarded as being compatible with the relevant provisions of Directive 2002/58 and of Directive 2005/29.
39. As is clear from point 26 of Annex I to Directive 2005/29, the prohibition on ‘making persistent and unwanted solicitations by telephone, fax, email or other remote media except in circumstances and to the extent justified under national law to enforce a contractual obligation’ applies without prejudice to the rules laid down, inter alia, in Directive 2002/58. As the national court requests, I shall therefore examine in turn the questions concerning the interpretation, first, of Directive 2002/58 and, secondly, of Directive 2005/29.
A. Interpretation of the relevant provisions of Directive 2002/58
40. By its first and second questions, the national court requests the Court, in essence, to rule on whether the criteria for defining ‘electronic mail’, within the meaning of Article 2(h) of Directive 2002/58, are met in the case of an advertising message which displays in the inbox of the account of an email service user. Specifically, it asks whether a message may be regarded as being ‘sent’, within the meaning of that provision, where it is not transmitted by that user to another user, via a service provider, to the electronic address of that other user, but, as a consequence of the opening of the password-protected web page of an email account, is automatically displayed in the inbox of a randomly selected user. The national court also asks whether it is necessary, in order for a message to be regarded as having been ‘collected’, within the meaning of Article 2(h) of Directive 2002/58, for the recipient to trigger intentionally the transmission of the message data at issue or whether it is sufficient for that message to appear in the inbox as a consequence of the opening of the web page of the password-protected email account.
41. By its third and fourth questions, the national court requests an interpretation of the concept of ‘use of … electronic mail for the purposes of direct marketing’, within the meaning of Article 13(1) of Directive 2002/58. Specifically, it seeks, by its third question, to ascertain whether a message constitutes ‘electronic mail’ within the meaning of that provision, where it is not sent to a recipient individually designated prior to transmission but is displayed in the inbox of a randomly selected user. In addition, the national court asks whether ‘use of … electronic mail for the purposes of direct marketing’, within the meaning of Article 13(1) of Directive 2002/58, is established only where the user is found to be the subject of a burden that is greater than a nuisance.
42. Under Article 2(h) of Directive 2002/58, ‘electronic mail’ is defined as meaning ‘any text, voice, sound or image message’. That aspect of the definition does not give rise to any discussion in the present case and is certainly met by an advertising message such as that at issue in the main proceedings.
43. That said, three other criteria must be met in order for a message to be classified as ‘electronic mail’, within the meaning of that provision. First, the message must be ‘sent over a public communications network’. Secondly, the message must be capable of being ‘stored in the network or in the recipient’s terminal equipment’. Thirdly, the message must be capable of being collected by its recipient.
44. There are two different views as to whether an advertising message such as that at issue in the main proceedings meets those three criteria, either in full or only in part.
45. According to the view against describing such a message as ‘electronic mail’, which is held by eprimo and Interactive Media, an advertising message which is randomly displayed in the inbox of an email account cannot be regarded as having been sent, stored and collected in accordance with the requirements of Article 2(h) of Directive 2002/58. The arguments put forward in support of that view are based on the idea that such a message does not have the characteristics of a traditional email. First, it is not sent by one user to another, but is the result of a temporary and automated display in the inboxes of randomly selected users. Secondly, an advertising message such as that at issue in the main proceedings is not stored in the network or in the terminal equipment of the addressee. Thirdly, the message is not collected by the addressee because that presupposes a conscious act on the part of the addressee to become aware of a specific message by selecting it.
46. The view in favour of describing an advertising message such as that at issue in the main proceedings as ‘electronic mail’, which is held by the national court and, in part, by the Portuguese Government, is based on the need to adopt a functional interpretation of the concept of ‘electronic mail’ in order to attain the objective of protecting the privacy of users of email services. The consequence of that interpretation is that each of the criteria for that concept must be assessed in a flexible manner. Thus, an advertising message which is distributed and displayed in the inbox of an email service user’s account should, irrespective of the technology used, be regarded as having been ‘sent [to him] over a public communications network’, within the meaning of Article 2(h) of Directive 2002/58. The fact that that message is stored on an ad server and not in the recipient’s terminal equipment is sufficient, since that may be regarded as storage ‘in the network’, within the meaning of that provision. Moreover, such a message, which is displayed on opening the web page of the email account should be regarded as having been collected, as required by that provision. On the latter point, the argument of the Portuguese Government is more nuanced, since it considers that an advertising message displayed in the inbox of such an email account is not likely to be collected by its recipient. However, since that message continues to be stored in the network, that is sufficient for it to be described as ‘electronic mail’ within the meaning of Article 2(h) of Directive 2002/58.
47. In the light of the arguments, many of them technical, put forward in support of each of those two views, I incline to the line of argument put forward by the national court in favour of a functional interpretation of the concept of ‘electronic mail’, which might lead to the conclusion that an advertising message such as that at issue in the main proceedings does meet the criteria laid down in Article 2(h) of Directive 2002/58.
48. In any event, I consider that that concept should not be interpreted in isolation and that account should be taken of the provision in which it is used, namely Article 13(1) of Directive 2002/58 in the present case. I therefore join StWL and the Commission in considering that the relevant concept to be interpreted in the present case is that of ‘use of … electronic mail for the purposes of direct marketing’, within the meaning of that provision. I shall therefore focus my analysis on the interpretation of that provision, taking into consideration its wording, its objective and the need to ensure its effectiveness.
49. I note in that regard that Article 13 of Directive 2002/58 is entitled ‘Unsolicited communications’. According to the definition of the term ‘communication’ in Article 2(d) of that directive, Article 13 of the directive is intended to apply to ‘any information exchanged or conveyed between a finite number of parties by means of a publicly available electronic communications service’.
50. If a communication falls within the scope of Article 13(1) of Directive 2002/58, it is allowed on condition that prior consent has been obtained from the recipient. It is clear from Article 2(f) of Directive 2002/58, in conjunction with Article 94(2) of Regulation 2016/679, that such consent must meet the requirements under Article 2(h) of Directive 95/46 or Article 4(11) of that regulation, depending on which of those two rules is applicable ratione temporis to the facts at issue in the main proceedings. As it is an action to bring about the end of an illicit commercial practice, it is not inconceivable that, if the proceedings brought by StWL seek an order that eprimo refrain from future action, Regulation 2016/679 would be applicable ratione temporis to the dispute in the main proceedings, although the facts giving rise to that dispute occurred prior to 25 May 2018, the date on which that regulation became applicable, since Directive 95/46 was repealed with effect from that date. (13) It must therefore be an indication of wishes that is at least freely given, specific and informed. (14)
51. Article 13(1) of Directive 2002/58 specifies the types of communications to which the requirement of prior consent on the part of their recipients applies. First, they must be communications for the purposes of direct marketing, that is to say, communications for commercial purposes that are addressed directly and individually to users of electronic communications services. Secondly, the communications must reach such users through ‘the use of automated calling and communication systems without human intervention (automatic calling machines), facsimile machines (fax) or electronic mail’.
52. Article 13(1) of Directive 2002/58 is not therefore intended to apply generally to pop-up windows that may appear during web browsing. That provision applies only to direct marketing communications which reach their recipients directly and individually via certain electronic communication media, such as electronic mail. (15)
53. The current wording of Article 13 of Directive 2002/58 originates from Directive 2009/136, recital 67 of which reads ‘safeguards provided for subscribers against intrusion into their privacy by unsolicited communications for direct marketing purposes by means of electronic mail should also be applicable to SMS, MMS and other kinds of similar applications’. (16) The EU legislature thus intended to adopt a broad definition of the means of electronic communication through which direct marketing is conducted, going beyond emails alone. That broad definition also finds expression in recital 40 of Directive 2002/58, which states that ‘safeguards should be provided for subscribers against intrusion of their privacy by unsolicited communications for direct marketing purposes, in particular by means of automated calling machines, telefaxes, and emails, including SMS messages,’ (17) which implies, in addition to the fact that electronic mails are not limited to emails alone, that the list of the means of communication cited is not exhaustive. The intention of the EU legislature to cover a broad spectrum of communications conducted for the purposes of direct marketing is also supported by recital 4 of Directive 2002/58, which states the objective of ‘[providing] an equal level of protection of personal data and privacy for users of publicly available electronic communications services, regardless of the technologies used’. (18) That objective calls for the adoption of a dynamic and technology-neutral definition of the concepts appearing in Directive 2002/58.
54. Whatever the extent of the means of communication used for the purposes of direct marketing that are intended to come within the scope of Article 13(1) of Directive 2002/58, it seems to me decisive, in the situation at issue in the main proceedings, that it is by using electronic mail that the advertising messages at issue in the main proceedings reach their recipients. Like the Commission, I note that those messages appear in the inbox of the account of an email service user, that is to say, a place which is normally designated for electronic mails stricto sensu constituted by private emails. The sender of those messages is therefore using electronic mail to reach the consumer, so they are indeed communications for direct marketing purposes ‘by means of electronic mail’, as stated in recital 67 of Directive 2009/136, in the light of which Article 13(1) of Directive 2002/58 must be interpreted. The insertion of messages such as those at issue in the main proceedings into a list of private emails must therefore, in my view, be described as the use of electronic mail for the purposes of direct marketing, which falls within the scope of Article 13(1) of Directive 2002/58.
55. Due to its positioning in the inbox of the account of an email service user, the advertising practice at issue makes it possible to reach that user directly and individually in the private sphere constituted by that password-protected inbox, with an effectiveness that seems to me to be comparable to that of unsolicited emails (spam). The placing of the advertising at issue in the inbox is not a random choice and makes a significant difference, in so far as the application of Article 13(1) of Directive 2002/58 is concerned, as compared to the advertising banners that appear at the edges of and separately from the list of private emails. By appearing on the same level as private emails, the advertising at issue enjoys the same amount of attention as users devote to the latter. As the Commission rightly points out, in such a situation, economic operators who compete to distribute such advertising are making use of private email inboxes – and the interest and trust which the users of an email service have in that inbox – by giving their advertising messages an appearance which, except for a few minimal differences, is similar to that of private emails. Moreover, since the advertising messages occupy lines in the inbox that are normally designated for private emails and because of their similarity to the latter, there is a likelihood of confusion between those two categories of messages that may cause a user who clicks on the line corresponding to the advertising message to be redirected unintentionally to a website offering the advertisement at issue instead of continuing to access his private emails.
56. Like the Commission, I consider that although, unlike private emails, the advertising message appears against a grey background, does not take up any storage space and does not offer the usual functionalities of emails, that does not mean that there is no breach of the privacy of email service users. Since, as they appear in the same list as private emails, the advertising messages at issue in the main proceedings require the same amount of attention and the same action to delete them as unsolicited emails (spam), the level of nuisance appears to me to be the same. Moreover, the fact that those messages do not have the same functionalities as emails creates a greater nuisance than unsolicited emails (spam), since the special treatment they require may lead to errors when they are deleted, or unintentional clicks on the advertisement.
57. In short, the infringement of privacy here seems to me to be characterised by the use of a means of communication, in this case electronic mail, that is normally reserved for sending and receiving private correspondence. In contrast to advertising banners that are displayed at the edges of, and separately from, the list of private emails, the presence of the advertising messages at issue in the main proceedings inside the private email inbox, which the user regards as coming within his private sphere, impedes access to those emails to an extent and in a manner very similar to what happens in the case of unsolicited emails (spam). I therefore consider that, as a result, this undermines the objective of protecting users against intrusion of their privacy by unsolicited communications for direct marketing purposes pursued by Article 13(1) of Directive 2002/58, read in the light of recital 40 of that directive and of recital 67 of Directive 2009/136. Intrusion into the private sphere through use of an email inbox is therefore established and is sufficient in my view for the technique of direct marketing at issue in the main proceedings to be made subject to the requirement of prior consent on the part of an email service user.
58. It would, in my view, undermine the effectiveness of Article 13(1) of Directive 2002/58 if advertising messages such as those at issue in the main proceedings were allowed to appear in the inbox of the account of an email service user without the user giving his prior consent to receiving such messages in that form and in that place.
59. The objective sought by the EU legislature, which is to protect the user against permanent saturation of his inboxes or private telephone lines by unsolicited commercial messages or calls, therefore requires the effectiveness of that provision to be ensured. This means that the latter must be interpreted as applying to advertising messages which, due to their similarity to a private email and their positioning in the list of private emails, infringes the privacy of users of email services. Such an interpretation should be adopted in order to avoid the requirement of prior consent laid down by Article 13(1) of Directive 2002/58 being circumvented, even though an advertising message such as that at issue in the main proceedings, in my view, undeniably constitutes an act of direct marketing by electronic means using for its conveyance the inbox normally intended only for emails, producing the same effects and the same nuisance as an unsolicited advertising email (spam), which is one of the main targets of that provision.
60. Furthermore, as regards the objective of technological neutrality, which is also pursued by the EU legislature, as I mentioned above, it is necessary to adopt a broad interpretation of the scope of Article 13(1) of Directive 2002/58 in order to be able to address new direct marketing techniques.
61. I would add, in response to the third question raised by the national court, that the fact that an advertising message such as that at issue in the main proceedings is inserted in the inbox of a randomly selected user, in my view, by no means prevents the finding that there is ‘use of … electronic mail for the purposes of direct marketing’, within the meaning of Article 13(1) of Directive 2002/58. I, like the Portuguese Government, consider that whether the choice of recipient is random or predetermined does not constitute a condition for the application of that provision. In other words, it is irrelevant whether the advertising at issue is addressed to a predetermined and individually identified recipient or is sent on a mass, random basis to multiple recipients. What is important is that there is a communication for a commercial purpose, which reaches, directly and individually, one or more email service users by being inserted in the inboxes of those users’ email accounts.
62. It should also be stated, in response to the fourth question referred by the national court, that it is not necessary, in order for advertising such as that at issue in the main proceedings to be described as ‘use of … electronic mail for the purposes of direct marketing’, within the meaning of Article 13(1) of Directive 2002/58, to find that the burden to which the user is subject is greater than a nuisance. As is clear from recital 40 of that directive, the requirement of prior consent laid down in that provision stems, in particular, from the fact that unsolicited communications for direct marketing purposes may ‘impose a burden and/or cost on the recipient’. Since such communications fall within the scope of Article 13(1) of Directive 2002/58, it must be presumed that they impose a burden on the recipient, without the need to find whether that burden is greater than a nuisance.
63. It is clear from the above considerations that an advertising message such as that at issue in the main proceedings falls, as I see it, within the scope of Article 13(1) of Directive 2002/58. Consequently, direct marketing of that type is not allowed unless the recipient has given his prior consent.
64. As I stated above, it must be at least freely given, specific and informed consent. (19)
65. In that regard, it is for the national court to determine whether, during the process of registering the free email address, or at some other time, the user has been informed in detail of the procedure whereby the advertising is displayed upon opening the web page corresponding to that email account. It is necessary, in particular, to ensure that that user has been informed in clear and specific terms that advertising banners are displayed not only at the edges of, and separately from, the list of private emails, but also within the list itself. Such information must enable the user to determine easily the consequences of any consent he might give and ensure that the consent given is well informed. (20) On that basis, it is necessary to check that the user has given his consent specifically to the advertising procedure at issue in the main proceedings, that is to say, he must have expressly consented to receive advertising messages in the inbox of his email account. (21)
66. The business model on which a number of email service providers on the internet operate is often based on advertising. In that regard, the user of such services accepts that the free provision of that service is to some extent offset by the display of advertisements. However, that does not alter the requirement that acceptance of the advertising, when it appears within the actual inbox of the email account, must, under Article 13(1) of Directive 2002/58, be indicated by the user of that account giving his consent.
67. In the light of the above considerations, I suggest that the Court’s answer to the national court should be that Article 13(1) of Directive 2002/58 should be interpreted as meaning that ‘use of … electronic mail for the purposes of direct marketing’, within the meaning of that provision, covers displaying in the inbox of an email service user advertising messages in a similar form to that of emails and in the same place as the latter; that the random selection of the recipients of such messages has no relevance in that regard and that there is no need to find that the user is the subject of a burden that is greater than a nuisance. It is for the national court to determine whether that user has given consent that is, at least, freely given, specific and informed, prior to such advertising messages being displayed in the inbox of his email account.
B. Interpretation of point 26 of Annex I to Directive 2005/29
68. By its fifth question, the national court asks, in essence, whether point 26 of Annex I to Directive 2005/29 should be interpreted as meaning that displaying advertising messages in the inbox of an email service user constitutes persistent and unwanted solicitations by electronic mail.
69. Article 5(2) of Directive 2005/29 lays down the criteria for finding whether a commercial practice is unfair, and Article 5(4) states, in particular, that commercial practices are unfair if they are ‘misleading’ as set out in Articles 6 and 7 of that directive, or are ‘aggressive’, as set out in Articles 8 and 9 of that directive. Article 5(5) of Directive 2005/29 provides, moreover, that Annex I of that directive ‘contains the list of those commercial practices which shall in all circumstances be regarded as unfair’. In that regard, recital 17 of Directive 2005/29 states that, to provide greater legal certainty, only the practices listed in Annex I thereto are deemed to be unfair in all circumstances, without the need for a case-by-case assessment against the provisions of Articles 5 to 9 of that directive. (22) Since Annex I to Directive 2005/29 constitutes a complete and exhaustive list, the commercial practice at issue in the main proceedings cannot be described as an aggressive practice in all circumstances, within the meaning of that directive, unless it corresponds to one of the situations listed in points 24 to 31 of that annex. (23)
70. Among the ‘aggressive commercial practices’ listed in Annex I to Directive 2005/29, point 26 mentions ‘making persistent and unwanted solicitations by telephone, fax, email or other remote media except in circumstances and to the extent justified under national law to enforce a contractual obligation’.
71. As I stated above, an advertising message such as that at issue in the main proceedings reaches a user of an electronic communications service directly and individually, since it appears in the inbox of the user’s account by being inserted among his private emails. From the point of view of that user, the advertising message looks like an email that has been sent to him individually. As the Commission states, the effect of that message is therefore similar to that of individual direct marketing, whether or not the advertiser has singled out that specific recipient during the technical preparation of the message in question and whether or not that message is processed differently from emails in terms of storage space and functionalities.
72. I therefore consider that an advertising message such as that at issue in the main proceedings, which has the characteristics of direct marketing and is distributed for that purpose, constitutes ‘solicitation’ of users of email services, since that message is addressed to them directly and individually in an area reserved for their private emails.
73. As regards the characteristics that ‘solicitations’ must have in order to be covered by point 26 of Annex I to Directive 2005/29, namely, they must be ‘persistent and unwanted’, I consider that it is for the national court to determine whether they exist in the dispute in the main proceedings. For the purposes of such determination, I would point out that an advertising message such as that at issue in the main proceedings should, in the light of the definition in Article 8 of Directive 2005/29 of what constitutes an aggressive commercial practice, be displayed sufficiently frequently and regularly to be described as ‘persistent solicitations’, which does not appear to me to be the case where a message has appeared on three occasions only. On the other hand, it would be ‘unwanted’ solicitations, in my view, if it were established that the user of the email service had not given his prior consent to advertising messages being displayed in the inbox of his email account. It should also be borne in mind that that user sent a letter of formal notice to eprimo on 20 December 2016 concerning an advertisement of 12 December 2016 and thus expressly notified that company of his wish not to receive that type of advertisement.
74. In the light of all this evidence, the answer to the fifth question should, in my view, be that the concept of ‘persistent and unwanted solicitations by … email’, within the meaning of point 26 of Annex I to Directive 2005/29, should be interpreted as meaning that it may cover practices such as those at issue in the main proceedings, consisting in displaying in the inbox of a user of an email service advertising messages in a similar form to that of emails and in the same place as the latter. It is, however, for the national court to determine, first, whether those advertising messages were displayed sufficiently frequently and regularly to be described as ‘persistent’ solicitations and, secondly, whether the display of those messages can be described as ‘unwanted’ solicitations, in view of whether or not consent had been given by that user prior to such display and whether or not that user had objected to such an advertising procedure.
V. Conclusion
75. In the light of the foregoing considerations, I propose that the Court reply as follows to the questions referred for a preliminary ruling by the Bundesgerichtshof (Federal Court of Justice, Germany):
(1) Article 13(1) of Directive 2002/58/EC of the European Parliament and of the Council of 12 July 2002 concerning the processing of personal data and the protection of privacy in the electronic communications sector (Directive on privacy and electronic communications), as amended by Directive 2009/136/EC of the European Parliament and of the Council of 25 November 2009, must be interpreted as meaning that ‘use of … electronic mail for the purposes of direct marketing’, within the meaning of that provision, covers displaying in the inbox of an email service user advertising messages in a similar form to that of emails and in the same place as the latter; that the random selection of the recipients of such messages has no relevance in that regard and that there is no need to find that the user is the subject of a burden that is greater than a nuisance. It is for the national court to determine whether that user has given consent that is, at least, freely given, specific and informed, prior to such advertising messages being displayed in the inbox of his email account.
(2) The concept of ‘persistent and unwanted solicitations by … email’, within the meaning of point 26 of Annex I to Directive 2005/29/EC of the European Parliament and of the Council of 11 May 2005 concerning unfair business-to-consumer commercial practices in the internal market and amending Council Directive 84/450/EEC, Directives 97/7/EC, 98/27/EC and 2002/65/EC of the European Parliament and of the Council and Regulation (EC) No 2006/2004 of the European Parliament and of the Council (‘Unfair Commercial Practices Directive’), must be interpreted as meaning that it may cover practices such as those at issue in the main proceedings, consisting in displaying in the inbox of a user of an email service advertising messages in a similar form to that of emails and in the same place as the latter. It is, however, for the national court to determine, first, whether those advertising messages were displayed sufficiently frequently and regularly to be described as ‘persistent’ solicitations and, secondly, whether the display of those messages can be described as ‘unwanted’ solicitations, in view of whether or not consent had been given by that user prior to such display and whether or not that user had objected to such an advertising procedure.