StWL v eprimo
Case summary
This case involves two competing electricity providers, StWL and eprimo. Eprimo hired the services of an advertising agency to insert adverts into people’s email inboxes.
The advertising emails were very similar to emails received normally, the only difference being:
- That the date received on the email was replaced by “Advertisement”;
- There was no sender;
- The text appeared against a grey background; and
- The subject line contained text promotion eprimo’s electricity and gas services.
StWL issued proceedings against eprimo on the basis that using inbox advertising in the absence of the user’s express consent amounted to anti-competitive behaviour. In the first instance, the Regional Court in Germany upheld StWL’s concerns and ordered eprimo to cease its inbox advertising. Eprimo appealed this decision to the Federal Court of Justice.
The question before the Court of Justice was whether the inbox advertising complied with Directive 2002/58/EC (ePrivacy Directive).
What was decided?
In coming to their decision, the Court of Justice considered three points:
1. Firstly, the Court of Justice considered whether the type of communication used by eprimo (i.e. advertising emails) would come within the types of communication listed in Article 13(1) of the ePrivacy Directive. They were satisfied that as the messages made their way into the user’s inbox (in a similar way to spam emails) this would constitute email advertising for the purposes of Article 13(1).
2. Secondly, the Court of Justice considered whether the purpose of the email was direct marketing. To be classified as an email for the purpose of direct marketing within the meaning of Article 13(1) of the ePrivacy Directive you simply need to be able to show that the user has been subjected to a burden. This burden does not need to be any greater than a nuisance. The Judge accepted that it is common ground that advertising by way of email (such as spam emails) does impose a burden on the user.
3. Lastly, the Court of Justice considered whether prior consent was obtained from the users. It was concluded that as the users had opted for the email provider’s free email service they had accepted that they would receive some adverts. The Court however needed to determine whether it was made clear to them that they would receive advertising messages within their private emails and whether they had consented to receive these specific messages. The Court concluded that the users had not given their consent to the advertising messages.
The Court of Justice ultimately came to the decision that inbox advertising was in contravention of Article 13(1) of the ePrivacy Directive. Such advertising was an unsolicited form of direct marketing to which the users had not consented.
Comment
Whilst this is a German case and therefore not a binding decision in England and Wales. It is plausible that if such a case were before the English Courts they would come to a similar conclusion.
This case makes it clear that where an advertiser wishes to utilise “inbox advertising” they should ensure that all users are clearly and specifically informed that the advertising will appear within their inbox and they should seek specific consent to this.
How can Nelsons help?
Ruby Ashby is an Associate in our expert Dispute Resolution team.
Should you be affected by any issues surrounding the use of personal data, please do not hesitate to contact Ruby or another member of the team in Derby, Leicester, or Nottingham on 0800 024 1976 or via our online enquiry form.