German FCJ ruling strengthens users with regard to advertising banners in email inboxes

For some time now, many freemail providers have been using advertising banners, bars or inserts in the mailbox. The fact that this is not legally justifiable has now been confirmed by the Federal Court of Justice (FCJ) in a ruling on June 01, thus strengthening users.

FCJ ruling: obligation to point out advertising banners

Anyone who uses a free email box knows them: Advertising banners, bars and entries in the email list that look like real mails. As the Federal Court of Justice (FCJ) has determined in a judgment of June 01, 2022, email providers must explicitly point out corresponding insertions. The mere declaration of consent on the part of the users is therefore no longer sufficient.

The facts of the ruling were an advertising email in the mailbox of a user, as referred to a cheap electricity and gas tariff and thereby not recognizable forwarded to an external link and logged the click via an ad server. “The plaintiff complains about this advertising as anti-competitive under the aspects of unreasonable harassment and misleading,” it says in the judgment.

Specifically, it is now no longer sufficient to agree to the free use of an email inbox that advertising banners are placed in the inbox. With regard to email providers, an explicit notice must be given if corresponding advertising banners are used.

Threatening confusion with real mails

The FCJ sees in it additionally a threatening danger of confusion with genuine emails, since advertising insertions partly also quite normally in the Inbox message list represented and thus genuine messages to the confusion resemble.

Accordingly, in the current case, the Court of Justice of the European Union was presented with questions on the interpretation of the EU Directive on Privacy and Electronic Communications and the Unfair Commercial Practices Directive.

As early as the end of November 2021 the court in Luxembourg ruled on the subject of inbox advertising and came to the conclusion that corresponding hidden advertising messages in the inbox violate EU law. Here, too, it was concluded that corresponding inbox advertisements that look like emails are only permissible if users have expressly consented to them in advance. It remains to be seen when and how the new ruling will be implemented.