The ECJ has ruled in the Rs. C‑654/23 of November 13, 2025 (Inteligo Media SA v Autoritatea Națională de Supraveghere a Prelucrării Datelor cu Caracter Personal) ruled that the provider of a paid information service may send advertising for this service to newsletter subscribers without their consent:
First of all, “direct marketing within the meaning of Art. 13 (1) of the e‑Privacy Directive (DIRECTIVE 2002/58) as much as “Commercial communication„:
41 […] it follows from the case-law of the Court of Justice that that concept covers communications by which a commercial objective and which are directly and individually addressed to a Consumers direct […].
This is the case for e‑mails with an informational background and an invitation to obtain full texts for a fee.
As a basic rule, Art. 13 para. 1 of Directive 2002/58 requires the consent of the recipients. Art. 13 para. 2 allows with the “Existing customer exception” the dispatch even if the contact details were collected in connection with the sale of a service. However, this exception requires that the contact data used received in connection with a sale were.
In this case, it was not obvious that this requirement was met: the recipients of the newsletter had registered for a free product:
55 […] Inteligo Media […] obtained the electronic contact information of the users concerned when they created a free account on the online platform operated by that company, which implied that those users accepted the contractual conditions for the provision of the ‘premium service’. By subscribing to this service, these users obtained the right to free access […]
However, according to the ECJ in a not self-evident and not inelegant argumentation, this does not do any harm:
54 […] the Court has held that the remuneration for a service provided by a supplier in the course of his economic activity is not necessarily paid by those who benefit from it. That is the case, in particular, where a free service is provided by a supplier for the purpose of advertising the goods or services he sells, since the costs of that activity are then included in the selling price of those goods or services […]. These considerations can be applied to the interpretation of Article 13(2) of Directive 2002/58.
The ECJ therefore allows the remuneration to suffice that pay those addressees for whom the advertising is effective. The fact that money is flowing here also makes all other free subscriptions look like “in connection” with a sale appear.
Since no consent requirement follows from Art. 13 of the Directive, the GDPR does not require consent either. According to Art. 95 and Recital 173, the GDPR does not apply if Directive 2002/58 contains a specific provision for the same purpose.
Legal situation in Switzerland
The result of the ECJ can probably be transferred to Switzerland, especially since Art. 3 para. 1 lit. o UCA is deliberately based on European law with the aim of harmonizing the law:
o. […] who is at the Sale of goods…] and points out the possibility of refusal, does not act unfairly if he sends these customers mass advertising for his own similar goods, works or services without their consent;
- Firstly, exempt advertising is limited to your own and similar services, which is why consent is often the better option;
- Secondly, the existing customer exception only applies if the purpose of the advertising and the possibility of refusal were already pointed out when the contact address was obtained, which is often not verifiable.
However, enforcing the ban on spam in Switzerland is not exactly a priority for the relevant authorities.