Challenging AG Szpunar: flaws in the “Inteligo Media” Opinion

Not convinced by the reasoning of CJEU Advocate General Szpunar in the Inteligo Media case on the notion of “direct marketing”. Why?
(i) The reasoning on Art. 13(2) of the ePrivacy Directive (ePD) seems flawed.

The AG suggests that “Article 13(2) [ePD] deals comprehensively with the question of consent” (para. 50) and that its lex specialis character in this respect means that “Recourse to the GDPR, in particular Article 6(1)(a) to (f) thereof, is neither possible nor necessary” (para. 51). In other words, no need to look at the GDPR legal ground, as Art. 13(2) ePD deals with it.

Why do I say it’s flawed?

Because *Art. 13(2) ePD has nothing to do with consent*. Instead, it is an *exception* to consent. It deals with a scenario that if it meets certain conditions *does not require consent*. It even explicitly talks about giving the “opportunity to object” – not exactly consent.

Saying that 13(2) ePD “deals comprehensively with the question of consent” feels odd.

Under the GDPR, legitimate interest or contract make a lot of sense here. Why not allow them?

(ii) In essence, per the AG, “direct marketing” means a communication that is for or related to the buying & selling of products/services, with a view to generating revenue or profit (para. 31).

But the definition here is interpreted broadly, as the AG suggests an underlying intent (= enticing the users to consume more quickly and thus be led to pay for the service – para. 32) that does not appear to have ever been demonstrated by any of the parties in the case.

Para. 34’s conclusion – “It is likely that these users will open eight of the articles within days or weeks, leaving them with no choice but to pay a full subscription should they wish to read any additional articles during the remainder of the month” – is purely speculative.

So is a speculative approach about the intent of a communication now the standard for assessing whether that communication is of a “direct marketing” nature?

I hope not.

(iii) There is one fun part of the Opinion that might lead to stronger opinions from some readers who are often on the other side of a debate from me:

In addition to this, it should not be forgotten that in the modern digital age, data themselves are treated as a commodity. Thus, it could be envisaged that for data to have been collected ‘in the context of a sale’, it is sufficient that, in lieu of financial consideration, a user furnishes their personal data in exchange for a good or service of value to them.” (para. 45)

I won’t say more, but nice one!

(iv) Closing thoughts: I think this AG Opinion is flawed, but to the question “is a free e-mail promoting content behind a paywall ‘direct marketing’?”, I doubt the conclusion of the CJEU will be any different. I just hope their legal reasoning is one that leads to fewer questions.

Link to the AG Opinion: https://lnkd.in/e_vCVWVn
And my analysis of today’s other major AG Opinion: https://lnkd.in/ev5P6Pi8

Data protection privacy