The European Court of Justice's latest ruling clarifies when an email constitutes marketing communication (i.e., a newsletter) and when such content can be sent without user consent under the so-called 'soft opt-in' basis. While the case originated from a legal news website's practices, the ruling extends far beyond the media sector: the conclusions directly affect online platforms, e-commerce providers, digital content providers, and any business that operates a registration-based platform and conducts or wishes to conduct email user communication.
The Essence of the Decision
The Court ruled that a newsletter constitutes direct marketing even if it primarily conveys editorial or informational content, provided its purpose is to direct users toward paid or commercially relevant content (e.g., clicking on articles, subscribing, upgrading packages). Marketing content is therefore to be interpreted broadly, and conversion-driving content is sufficient for the message to fall under direct marketing rules.
However, an important finding is that the 'soft opt-in' exception (essentially sending with the provision of user objection and unsubscribe options) may be applicable even when a user provides their email address during free registration. Such registration—even if free—qualifies as part of the service and, due to the underlying business model (e.g., subscriptions, paid packages), can be indirectly considered consideration. The exception is narrow: only the same business may use the addresses for marketing its own 'similar' products/services; third-party promotions are excluded, and recipients must be given clear, free, and easily exercisable objection/unsubscribe options both at the time of address collection and in every message. If the exception's conditions are not met, prior explicit consent is required (ePrivacy Article 13(1)).
This has significant importance: if the soft opt-in conditions are met, the lawfulness of newsletter sending can be established under ePrivacy Article 13(2), and the ePrivacy Directive's special rules take precedence (lex specialis) over GDPR's general requirements; moreover, users' newsletter subscription—i.e., GDPR consent for sending—is essentially not required. However, other GDPR provisions remain applicable (e.g., transparency, purpose limitation, data minimization, security, data subject rights).
Why This Matters for Online Platforms and E-commerce Players
On social, marketplace, or SaaS platforms, a 'free account' actually qualifies as a service. The email address obtained through registration may thus—under certain conditions—qualify as an address provided 'in the context of a sale.'
If a platform emails offers for its own feature upgrades, premium packages, or sends activity-encouraging content, this counts as a marketing message; however, 'soft opt-in' may thus serve as a lawful basis for regularly contacting registered users under certain conditions, without requiring separate user subscriptions. However, the scope of 'similar products/services,' the same-business requirement, and opt-out compliance must always be examined.
Customer registration, free profiles, or loyalty programs may also qualify as address collection 'in the context of a sale.'
Product recommendation emails, cart reminders, new collections, or similar own-product advertisements all fall under direct marketing (especially if promotional in nature).
The decision may thus have the consequence that where all soft opt-in conditions are met, separate consent is not required for advertising own, similar products/services. In other words: the ruling clarifies—and in certain cases practically expands—the scope of cases when Hungarian companies may lawfully send marketing emails to registered users, provided the strict conditions of soft opt-in are fully met.
