When submitted a request for a preliminary ruling, the Court of Justice of the European Union (CJEU) is expect to answer questions – not raise too many new ones. Unfortunately, a judgment on online advertising of 25 November 2021 appears to miss the mark in this respect.
The StWL v. eprimo case concerns the question of spam (unsolicited commercial communications) and how far the rules extend.
On a free ad-supported e-mail service, users were shown adverts to support the service financially (a paying version was also available, without ads). While ads sometimes appear in banners or pop-up windows, the ads that were the subject of this particular case appeared in the list of e-mails, between e-mails received. Imagine an inbox with a structure such as this: (i) e-mail 1, (ii) e-mail 2, (iii) ad, (iv) e-mail 3, etc. The content of the ad looked like an e-mail, other than the fact that there was no date.
The CJEU was asked to see whether this is spam, i.e. an unsolicited commercial communication prohibited under the ePrivacy Directive (2002/58/EC).
Read our analysis here – and why we fear that the CJEU's approach could set a dangerous precedent for the world of online advertising.