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Email advertising is only permitted with prior, free, specific, and informed consent. According to the Advocate General at the European Court of Justice, this may also apply to advertisements that a mail provider displays *in* the incoming emails: these could be classified as email (direct marketing). Without valid consent, such advertising would then not be permitted.
You are not allowed to simply send promotional emails — only with permission that meets strict requirements. Nevertheless, you sometimes see advertisements in your mailbox because some providers display them themselves. The European Court of Justice must assess whether this is permissible and whether such advertisements are also emails. The Advocate General believes they are.
Is a provider allowed to show advertisements in the mailbox?
This concerns a free email service that places advertisements in users' private mailboxes, for example between the lines of the incoming email overview. They are displayed randomly and are not personalized. The provider makes it somewhat clear that these are not real emails: they appear on a gray background with the word “advertisement”, have no date or sender, cannot be saved, replied to, or forwarded, and do not count towards the number of unread emails.
Both Dutch and European law prohibit unsolicited advertising via email; this is only permitted with prior, free, specific, and informed consent. The German court ruled in the first instance that it was not allowed, but on appeal that it was, after which the highest German court referred questions to the European Court: is this advertising an email, and therefore unsolicited direct marketing?
Are these advertisements secretly emails?
The Advocate General defines an e-mail as (i) a message that (ii) is transmitted over a public communication network, (iii) is stored in the network or by the recipient, and (iv) can be retrieved by the recipient. All those conditions are met here: the advertisement is a message, is transmitted and stored from a server, and is automatically retrieved when the user opens their mailbox. The fact that the advertisements are placed among real e-mails and receive the same attention is a contributing factor; according to the AG, the fact that they are automatically placed and have a different design does not alter this.
The Advocate General's conclusion: there is unlawful direct marketing via email.
What does this mean for you?
If the Court follows the Advocate General — which often happens — advertising within email summaries will no longer be permitted without prior, valid consent. The case underscores how important that free, specific, and informed consent is in direct marketing.
Frequently Asked Questions
May I send advertising by email?
Only with prior, free, specific, and informed consent (with a limited exception for existing customers and similar products). Without that consent, it is unsolicited direct marketing and not permitted.
Does this also apply to advertisements in an inbox?
Possibly. According to the Advocate General, advertisements between emails can be classified as email, meaning the consent rules for direct marketing apply.
What is valid consent?
Consent that is given in advance, freely, specifically, and informed — no silence or pre-ticked box, and always revocable.
Questions about direct marketing and consent?
The privacy experts at MKB Juristen help you set up your marketing to be GDPR and ePrivacy compliant. View our expertise in privacy and data protection or schedule an intake meeting .
