ePrivacy Directive

Article 13

Unsolicited communications

1. The use of automated calling systems without human intervention (automatic calling machines), facsimile machines (fax) or electronic mail for the purposes of direct marketing may only be allowed in respect of subscribers who have given their prior consent.

2. Notwithstanding paragraph 1, where a natural or legal person obtains from its customers their electronic contact details for electronic mail, in the context of the sale of a product or a service, in accordance with Directive 95/46/EC, the same natural or legal person may use these electronic contact details for direct marketing of its own similar products or services provided that customers clearly and distinctly are given the opportunity to object, free of charge and in an easy manner, to such use of electronic contact details when they are collected and on the occasion of each message in case the customer has not initially refused such use.

3. Member States shall take appropriate measures to ensure that, free of charge, unsolicited communications for purposes of direct marketing, in cases other than those referred to in paragraphs 1 and 2, are not allowed either without the consent of the subscribers concerned or in respect of subscribers who do not wish to receive these communications, the choice between these options to be determined by national legislation.

4. In any event, the practice of sending electronic mail for purposes of direct marketing disguising or concealing the identity of the sender on whose behalf the communication is made, or without a valid address to which the recipient may send a request that such communications cease, shall be prohibited.

5. Paragraphs 1 and 3 shall apply to subscribers who are natural persons. Member States shall also ensure, in the framework of Community law and applicable national legislation, that the legitimate interests of subscribers other than natural persons with regard to unsolicited communications are sufficiently protected.

Holdings

C-102/2025 Nov 2021

StWL Städtische Werke Lauf a.d. Pegnitz GmbH v eprimo GmbH

1. Article 13(1) of Directive 2002/58/EC of the European Parliament and of the Council of 12 July 2002 concerning the processing of personal data and the protection of privacy in the electronic communications sector (Directive on privacy and electronic communications), as amended by Directive 2009/136/EC of the European Parliament and of the Council of 25 November 2009, must be interpreted as meaning that the display, in the inbox of an electronic mail service user, of advertising messages in a form similar to that of real emails, and placed in the same position as those emails, without the fact that recipients are randomly determined or an assessment of the level of intensity and burden imposed on that user being relevant in that regard, constitutes 'use of ... electronic mail for the purposes of direct marketing', which is permitted only on the condition that the user was clearly and specifically informed of the distribution methods of such advertising, including within the list of private emails received, and the user indicated specific and fully informed consent to receive such messages.

C-473/127 Nov 2013

Institut professionnel des agents immobiliers (IPI) v Geoffrey Englebert and Others

Member States may, but need not, transpose into national law one or more of the exceptions in Article 13(1) of Directive 95/46 to the duty to inform data subjects about the processing of their personal data. Article 13(1)(d) covers a private detective engaged by a professional body to investigate breaches of the ethical rules of a regulated profession, such as estate agents.