Direct email marketing and ‘sale’ under ePrivacy Directive (Inteligo Media)
EU Law analysis: The Court of Justice has clarified that offering a free user account may under certain conditions amount to a ‘sale’ of a service under Article 13(2) of the ePrivacy Directive, permitting companies to send direct marketing emails to such users under the so-called soft opt-in exception. The court held that indirect economic benefit, rather than direct payment, suffices for establishing a commercial relationship. Further, the court, in line with the Advocate General, found that Article 13(2) of the ePrivacy Directive is exhaustive, meaning that organisations meeting the soft opt-in criteria do not require a separate EU GDPR justification to send marketing emails. The decision is significant for practitioners advising on direct marketing compliance and demonstrates the precedence of ePrivacy rules over the EU GDPR where sector-specific provisions exist. Companies using freemium or similar models now have greater legal certainty, but must still ensure all conditions of the soft opt-in are rigorously met. Written by Wiebke Reuter, salary partner at Taylor Wessing, and Susan Hillert, associate at Taylor Wessing.