Gmail users receive advertising emails by Google against CJEU judgment

26-08-2022

Agori Michopoulou

International Justice and Human Rights Researcher

Global Human Rights Defence

On the 24th of August 2022, noyb.eu and the French Data Authority Protection (CNIL) filed a complaint against Google. According to that complaint, Google ignores the ruling of the European Court of Justice (CJEU) on direct marketing emails. More specifically, on 25th of November 2021 the CJEU released its judgment in case C- 102/20, in which it was confirmed that any advertisement in a user’s inbox is dependent on the rule of consent. 

Nowadays, Google violates this ruling as it sends unsolicited advertising emails directly to the inbox of Gmail users. These emails, as noyb.eu and CNIL claim, are nothing else than advertisements to which users are never consented to. Any commercial emails that are sent to users without their consent, constitute direct marketing emails and they are regulated under the ePrivacy Directive. This is what Google ignores by sending commercial emails to Gmail users, without their consent. It is worth mentioning that, even though Gmail includes a spam folder, where it saves the external spam messages, the unsolicited spam messages by Google are sent directly to the user’s inbox, under the “Promotions” tab. When the user does not find these emails in the spam folder, does not realise that he/she has never given his/her consent. As the lawyer Romain Robert pointed out, the fact that the spam email is sent by the email provider does not mean that it is legal. Consent is needed in every situation. 

As the complaint is based on the ePrivacy Directive, allows CNIL to impose a fine to Google, without the cooperation of other Data Protection Authorities (DPAs), as it has already done in December 2021 over their cookie violations. Apart from the fine, CNIL ordered the cessation of the advertising emails by Google. 

Sources and Further Reading: 

European Court of Justice, Case C-102/20 Städtische Werke Lauf a.d Pegnitz GmbH, (2021, November 25). Retrieved on August 26, 2022, from https://curia.europa.eu/juris/document/document.jsf;jsessionid=92EBACA6F85205CFB67D73EE5B94FBF6?text=&docid=250043&pageIndex=0&doclang=en&mode=lst&dir=&occ=first&part=1&cid=7738640. 

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). Retrieved on August 26, 2022, from https://eur-lex.europa.eu/legal-content/EN/ALL/?uri=CELEX%3A32002L0058. 

Gmail creates “Spam Emails”, despite CJEU judgment, noyb (2022, August 24). Retrieved on August 26th, 2022, from https://noyb.eu/en/gmail-creates-spam-emails-despite-cjeu-judgment.