Marketing emails and consent – Key takeaways from recent court ruling

Inteligo Media, the operator of a Romanian news website, was fined €9,000 by Romania’s data protection authority. The issue was related to Its “Premium Service”, which let users create free accounts to access two extra articles and receive a daily newsletter called Personal Update, summarizing recent legislative changes with links to related content. The Romanian authority ruled that Inteligo Media processed users’ email addresses without valid consent. Sending the newsletter was deemed unlawful because users hadn’t explicitly agreed to receive marketing communications.

Inteligo Media appealed the decision which eventually was referred to the CJEU. The dispute centred on an exception in EU privacy law. The ePrivacy Directive requires as main rule consent from customers before sending marketing emails. However, the ePrivacy Directive contains an important exception, namely that companies can use customers' email addresses for marketing "similar products or services" if those email addresses were obtained "in the context of the sale of a product or a service." This exception is reflected in Article 13(2) of the ePrivacy Directive.

The court needed to determine whether this exception applied when Inteligo Media's users created free accounts rather than making direct purchases.

Free services can constitute a "sale"

The court ruled that obtaining email addresses through free account registration can qualify as being "in the context of the sale of a service." The court held that even though users didn't pay directly for the basic service, the free offering served an advertising purpose, namely promoting the publisher's paid subscription content. The cost of providing the free service was effectively incorporated into the price of the premium subscriptions. As such, the court emphasised that remuneration doesn't need to come directly from the service recipient, and indirect payment models are sufficient.

Newsletters can be "direct marketing"

Further, the court determined that the newsletter constituted "direct marketing" even though it contained informational content. The court focused on the newsletter’s commercial purpose, by encouraging users to use up their free article allowance and subscribe to the paid service.

The judgment clarifies that any communication promoting a company’s services falls under direct marketing rules, even if it provides useful information or content.

The key test is whether the message serves a commercial purpose and is addressed directly to individual consumers.

GDPR doesn't add extra requirements

The court also clarified the relationship between the ePrivacy Directive and the GDPR, in terms of marketing. As such, when a company sends marketing emails in accordance with the ePrivacy Directive's exception, a company doesn't need to separately satisfy the GDPR's lawfulness conditions for data processing. The ePrivacy Directive's specific rules take precedence in this context.

The CJEU judgment has direct relevance for Norwegian businesses. Section 15(3) of the Norwegian Marketing Control Act establishes the same exception as Article 13(2) in the ePrivacy Directive.  As such, The EU court's reasoning provides important guidance for interpreting the Norwegian provision, as follows:

"In connection with a sale" should be interpreted broadly

According to the EU court's logic, Norwegian businesses can rely on the exception when:

• Users create free accounts that provide access to limited content or services
• The free service serves to promote paid offerings
• Remuneration is indirect, incorporated into the price of premium services

Norwegian publishers, SaaS providers, and other digital businesses offering freemium models, should now be able to send marketing emails about their paid services to free account holders, without prior consent.

Informational content doesn't exclude marketing classification

Further, newsletters with informational content can still be considered “marketing” if they pursue a commercial purpose. The key question is whether the communication "promotes goods or services". Norwegian businesses should review whether their messages:

• Promote paid subscriptions or upgrades
• Encourage use of free allowances
• Include calls to action or conversion links

If so, they likely qualify as marketing—even with editorial content.

The ePrivacy Directive is incorporated into Norwegian law through the EEA Agreement, meaning that EU court interpretations carry significant weight in the interpretation of such Norwegian legislation. 

For Norwegian publishers, digital platforms, and other businesses using email marketing, the key takeaways are to carefully assess whether communications fall within the exception, ensure robust opt-out mechanisms, and when in doubt, seek explicit consent. The EU court's reasoning provides a helpful framework, but compliance with Section 15 ultimately requires attention to the specific circumstances of each business and its customer relationships.