Are internet ads considered direct marketing in Europe?

Internet ads are usually not considered direct marketing in Europe, though that is beginning to change. the ePrivacy Directive (Directive 2002/58/EC) includes a list digital direct marketing channels:

• Emails
• Text messages (SMS)
• Phone calls
• Automated calling systems
• Fax

The directive requires prior consent from individuals before sending them direct marketing communications via these channels.

The directive is implemented with some differences here and there in EU member states, though as of January 2025, there doesn't appear to be any national law which expands the list to include more recently-developed marketing tools, including internet ads.

There is hope however in some case-law and decisions by data protection authorities. Below is a list of notes about the legal definition of direct marketing in EEA countries and the UK:

• Is there a legal definition of direct marketing: No, only ePrivacy Directive
• What's the local version of ePrivacy: Telecommunications Act (TKG) https://www.rtr.at/rtr/service/rechtsvorschriften/gesetze/TKG_2021_en-gb.pdf

• Is there a legal definition of direct marketing: Yes, sorta
• Where is it defined: the Belgian Data Protection Authority (DPA) has provided a definition of direct marketing in its Recommendation 01/2020. According to the DPA, direct marketing is defined as:

“Any communication, in any form, whether solicited or not, which aims at promoting an organization, a person, services or products (whether free or not), a brand or ideas, originating from an organization or a person acting in a commercial or non-commercial context and addressed directly to one or more natural persons in a private or professional context, that involves the processing of personal data.”

Links to any relevant lawsuits or articles concerning the interplay of direct marketing and online ads: [https://cms-lawnow.com/en/ealerts/2020/02/belgian-dpa-publishes-new-detailed-guidelines-on-direct-marketing]

The Belgian APD has similarly highlighted the intersection between targeted ads and direct marketing. For example:

In its decision on the IAB Europe Transparency and Consent Framework, the APD appears to say that behavioral advertising practices require compliance with GDPR and ePrivacy consent standards re cookies https://www.autoriteprotectiondonnees.be/publications/decision-quant-au-fond-n-11-2022-anglais.pdf (page 12-13)

• Is there a legal definition of direct marketing: No, relies on ePrivacy Directive (ECA) https://www.mtc.government.bg/sites/default/files/documents/2023-07/Electronic_Communications_Act.pdf

• Is there a legal definition of direct marketing: No, just the ePrivacy Directive list with faxes and emails etc..
• One thing though that's interesting/funny in their implementation of ePrivacy (Electronic Communications Act):
• Prohibition of Consent Solicitation via Automated Systems: Employing technical systems to obtain consent for direct marketing is considered a form of direct marketing itself and is prohibited.

• Is there a legal definition of direct marketing: Nope, ePrivacy Directive (Regulation of Electronic Communications and Postal Services Law (Law 112(I)/2004)) with it's useless fax, email, etc list…

• Is there a legal definition of direct marketing: Nope. The Act on Certain Information Society Services transposes elements of the ePrivacy Directive into Czech law, specifically addressing electronic marketing practices. However, like the GDPR, it does not provide a standalone definition of “direct marketing.” Instead, it focuses on regulating consent requirements and opt-out rights for recipients of marketing communications.

• Is there a legal definition of direct marketing: Yes, sorta.
• The DPA issued guidance in 2023 which refers to C-102/20, StWL Städtische Werke Lauf a.d. Pegnitz GmbH, the EU case we rely on also to say “c'mon, nobody uses faxes – let's interpret the ePrivacy Directive like it's the 2020's already!!”

That guide – https://www.datatilsynet.dk/Media/638237218449834564/Vejledning%20om%20direkte%20markedsføring.pdf – says among other things:

Direct marketing means that you, as the data controller, are addressing one or more specific persons in a one or more specific persons for commercial purposes.6 This could be, for example: - personally addressed mail, - emails sent to a specific email address, - calls to a specific telephone number, - online marketing that targets a specific user (e.g. based on browsing history, purchase history browsing history, purchase history or similar), and - social media marketing that is targeted

Translated with www.DeepL.com/Translator (free version)

• Is there a legal definition of direct marketing: Nope, ePrivacy Directive (Personal Data Protection Act)

• Is there a legal definition of direct marketing: No, but their ePrivacy Directive law says both direct marketing and distance selling, and even has a veto on processing which appears to very broad:

Section 30 — Right to prohibit processing A data subject has the right to prohibit the controller to process personal data for purposes of direct advertising, distance selling, other direct marketing, market research, opinion polls, public registers or genealogical research.

Source: https://www.finlex.fi/en/laki/kaannokset/1999/en19990523.pdf

• Is there a legal definition of direct marketing: Nope, but CNIL loves to hate Meta…

Relevant Legal Frameworks:

1. Ordered List ItemLoi Informatique et Libertés (French Data Protection Act):

The law grants individuals the right to object to the processing of their personal data for direct marketing purposes, specifically under Article 38. It also refers to rules regarding how personal data should be handled, including the conditions under which it can be used for direct marketing.

1. Unordered List ItemGDPR (General Data Protection Regulation):

Under the GDPR, direct marketing is considered a lawful basis for processing personal data, particularly under Article 6(1)(f) (legitimate interests), as long as the data subject's rights and freedoms are respected. Article 21 of the GDPR, which deals with the right to object, specifically enables individuals to object to processing for direct marketing purposes.

1. Ordered List ItemFrench Electronic Communications Law:

This law governs the use of personal data in the context of direct marketing through electronic means (e.g., emails, text messages). It sets out strict rules on consent and opt-out requirements.

CNIL Guidelines:

Although there isn't a strict “definition” in the laws, the CNIL (Commission Nationale de l'Informatique et des Libertés) provides guidance and interpretation. Direct marketing generally refers to any advertising or marketing activity aimed at individuals using their personal data, whether done through email, telemarketing, or other forms of direct communication.

• Is there a legal definition of direct marketing: No, the Federal Data Protection Act (BDSG) does not explicitly define “direct marketing.” However, the Act Against Unfair Competition (UWG) addresses direct marketing practices, particularly in Section 7, which regulates unsolicited advertising communications.

• Is there a legal definition of direct marketing: Nope, the usual ePrivacy

https://www.dpa.gr/sites/default/files/2019-10/law_3471_06en.pdf

• Is there a legal definition of direct marketing: No, but they've got a 2011 data protection law which could be useful for strategic litigation – worth speaking to Hungarian data protection lawyers about I think:
• Act CXII of 2011 on Informational Self-Determination and Freedom of Information, Article 15: “Objection to the processing of personal data” appears to make it pretty straightforward to take data controllers to court if they don't honour legitimate objections re direct marketing. See translation here https://njt-hu.translate.goog/jogszabaly/2011-112-00-00.2?_x_tr_sl=auto&_x_tr_tl=en&_x_tr_hl=en&_x_tr_pto=wapp

• Is there a legal definition of direct marketing: Nope, and the DPC swears by the ePrivacy Directive's restrictive list (fax, email, etc…) as the definition for all things electric and direct marketing.
• Interestingly, spamming (i.e. sending unsolicited direct marketing) is a criminal offense in Ireland.

• Is there a legal definition of direct marketing: Nope, nothing useful for us in any case. Legislative Decree no. 196/2003 (the Privacy Code), like in other countries, is just like ePrivacy Directive and GDPR. Don't send faxes and emails etc…

• Is there a legal definition of direct marketing: Nope. tiešais mārketings (direct marketing) doesn't appear to have a legal definition, besides the direct marketing messaging one from ePrivacy Directive (faxes, emails, etc.)

• Is there a legal definition of direct marketing: No, same as Latvia.

• Is there a legal definition of direct marketing: Nothing useful. Direct marketing activities are regulated under both the General Data Protection Regulation (GDPR) and the Law of 30 May 2005 (as amended), which transposes the EU ePrivacy Directive into Luxembourgish law.

• Is there a legal definition of direct marketing: No, and their DPA appears to rely on ePrivacy Directive's narrow focus on direct marketing messaging https://idpc.org.mt/for-individuals/direct-marketing/ (see: Alongside the Regulation, the process of sending of electronic communications for the purpose of direct marketing is regulated by means of the lex specialis ‘Processing of Personal Data (Electronic Communications Sector) Regulations’ (Subsidiary Legislation 586.01 issued under the Data Protection Act 2018), which law transposes the provisions of the e-Privacy Directive 2002/58/EC.)

• Is there a legal definition of direct marketing: Not that I can find. But the Dutch DPA, AP, supported Norway's emergency bid in 2023 to stop Meta's personalised ads (https://autoriteitpersoonsgegevens.nl/actueel/verbod-op-gepersonaliseerde-reclame-facebook-en-instagram) and in that decision Norway's DPA likens Meta's ads to direct marketing. Even after Meta updated its privacy policy in early 2024, the AP advised Dutch government bodies to stop using Facebook Pages for privacy reasons: https://autoriteitpersoonsgegevens.nl/actueel/ap-overheid-gebruik-facebook-niet-bij-onduidelijkheid-over-privacy

• Is there a legal definition of direct marketing: No, but Norwegian Data Protection Authority (Datatilsynet) shares the view that Meta ads are direct marketing, which can be objected-to like any other direct marketing.

“Urgent and Provisional Measures – Meta” (14/07/2023) they wrote stated regarding the GDPR’s provisions concerning direct marketing that: “The Norwegian Consumer Authority assesses that the same considerations apply for marketing via social media such as Facebook and Twitter as for marketing communications via electronic communication methods, pursuant to Section 15 of the Norwegian Marketing Control Act (in Norwegian: markedsføringsloven)”

Key Points:

Extension of Marketing Rules to Social Media:

The Norwegian Consumer Authority clarified that the considerations for direct marketing via social media platforms (e.g., Facebook and Twitter) should align with those for electronic communication methods as outlined in Section 15 of the Norwegian Marketing Control Act (markedsføringsloven). This interpretation places marketing communications on social media within the scope of laws traditionally governing methods like email, SMS, or phone calls.

Relevance to GDPR:

Under the General Data Protection Regulation (GDPR), data subjects have the right to object to the processing of their data for direct marketing purposes (Article 21(2)). Social media marketing that relies on personal data processing must adhere to the GDPR’s lawful processing principles (Article 6). Explicit consent or legitimate interest may be the legal basis for such processing, but the individual’s right to object must be upheld.

Implications for Targeted Ads:

The decision scrutinized Meta’s reliance on user data for targeted advertising, arguing that such practices must align with Norwegian and EU standards for direct marketing. This includes obtaining explicit consent for processing personal data, particularly for personalized and targeted advertising on platforms like Facebook.

The Consumer Authority's Assessment:

The Norwegian Consumer Authority emphasized that unsolicited communications for marketing purposes on social media must comply with Section 15 of the Norwegian Marketing Control Act. This section prohibits sending unsolicited electronic communications for direct marketing without prior explicit consent from the recipient.

Implications:

Businesses utilizing social media for direct marketing in Norway must treat these channels with the same regulatory rigor as traditional electronic marketing methods. Marketers must obtain informed, explicit consent before targeting individuals on social platforms and provide mechanisms for individuals to opt-out easily. Non-compliance may result in fines or enforcement actions under both the Marketing Control Act and the GDPR.

• Is there a legal definition of direct marketing: Nope, the usual ePrivacy Directive definition only

• Is there a legal definition of direct marketing: Nope, same

• Is there a legal definition of direct marketing: No

• Is there a legal definition of direct marketing: Yes!

With effect as of 1 February 2022, the electronic marketing is regulated by the Act No. 452/2021 Coll. on Electronic Communications, as amended (the “Act”). With the effectiveness of the Act, the former regulation, i.e. Act No. 351/2011 Coll. on Electronic Communications, as amended, has been repealed.

The Act transposed Directive (EU) 2018/1972 of the European Parliament and of the Council of 11 December 2018 establishing a European Electronic Communications Code into the Slovak law.

The Act introduced new requirements for obtaining consent and conditions for conducting direct marketing including its definition.

According to the Act, the direct marketing means any form of presentation of goods or services in written or oral form, sent or presented through a publicly available service directly to one or more subscribers or users.

See: https://www.dlapiperdataprotection.com/index.html?c=SK&t=electronic-marketing&utm_source=chatgpt.com

• Is there a legal definition of direct marketing: Yes
• Where is it defined: Personal Data Protection Act, Article 2(1) [http://www.pisrs.si/Pis.web/pregledPredpisa?id=ZAKO7143]
• What is the definition: Direct marketing involves the communication of any advertising or marketing material to specific individuals.

Links to any relevant lawsuits or articles concerning the interplay of direct marketing and online ads: [No specific lawsuits found]

• Is there a legal definition of direct marketing: Yes
• Where is it defined: Organic Law on Data Protection and Guarantee of Digital Rights (LOPDGDD), Article 2 [https://www.boe.es/buscar/act.php?id=BOE-A-2018-16673]
• What is the definition: Direct marketing is understood as the communication of any advertising or marketing material aimed at individuals.

Links to any relevant lawsuits or articles concerning the interplay of direct marketing and online ads: [No specific lawsuits found]

• Is there a legal definition of direct marketing: Yes
• Where is it defined: Personal Data Act, Section 3 [https://www.riksdagen.se/sv/dokument-lagar/dokument/svensk-forfattningssamling/personuppgiftslag-2018319_sfs-2018-319]
• What is the definition: Direct marketing is defined as the communication of advertising or marketing material directed to specific individuals.

Links to any relevant lawsuits or articles concerning the interplay of direct marketing and online ads: [No specific lawsuits found]