European Union: Bucharest Court of Appeal requested Court of Justice of European Union to clarify applicability of ePrivacy Directive to direct marketing through electronic newsletters

On 2 November 2023, the Bucharest Court of Appeal requested a preliminary ruling at the Court of Justice of the European Union (EU) to clarify how EU privacy and electronic-communications rules apply to Inteligo Media’s daily email newsletter. The lawsuit concerns online news publishers that collect user emails and send updates. The court sought guidance on whether email collection during free account creation qualifies as obtaining contact details “in the context of a sale”, whether the free newsletter is “direct marketing” or “commercial communication”, and whether Inteligo Media needed express consent under the General Data Protection Regulation (GDPR) or could rely on the ePrivacy soft opt-in. The lawsuit also asks which GDPR lawful basis applies, whether penalties should follow GDPR or national ePrivacy law, and whether authorities must justify fines against all Article 83(2) criteria. Art 83 of GDPR requires fines to be effective, proportionate, and dissuasive, considering the infringement's nature, gravity, and damage.