Can Google slip advertisements disguised as letters among the emails received in the “ promotions » Gmail mailboxes? noyb thinks not, as long as the supplier of the solution has not obtained the agreement of the Internet user. Acting on behalf of three users, she has just sent a complaint to the CNIL.
“ It is very simple. Spam is commercial email sent without consent. And it’s illegal. Spam does not become legal simply because it is generated by the email provider insists Romain Robert, lawyer within the association founded by Max Schrems.
Among the advertising emails classified in this tab “ promotion », there are two types of mail: those for which the owner of the email address has actually given his consent. And the ads sent again in the form of e-mails, but labeled by Google as “ advertisement “.
“ When the complainants signed up for Gmail, or even later, they were not asked to consent to these advertising emails being sent to them. argues noyb, who considers the practice completely out of phase with European texts.
Several annoyances, according to the association
In its complaint, the association recalls that the ePrivacy directive conditions “ use […] e-mail for direct prospecting purposes » with the prior consent of the subscriber.
In France, article L35-4 of the Postal and Electronic Communications Code also prohibits this direct prospecting. through an automated system ” in “ using the contact details of a natural person, subscriber or user, who has not previously expressed his consent to receive direct prospecting by this means “.
These practices would therefore be prohibited, for lack of the recipient’s consent to receive these advertisements disguised as e-mails.
In a decision handed down on November 25, 2021, the Court of Justice of the EU was precisely interested in this marketing, called “inbox advertising” in the jargon. In a file concerning a German service provider, the question was then whether or not these advertisements fell under European legislation which governs prospecting by email.
For the High Court, there is no doubt: inbox advertising is indeed a “ use […] e-mail for direct prospecting purposes “. In order to ensure a high level of protection, regardless of the technology used, the CJEU has chosen to adopt a “ wide design so as not to disarm Internet users.
She developed a very practical approach in her analysis: “ from the point of view of the recipient, said advertising message is displayed in the inbox (…), namely in a space normally reserved for private emails. The user can release this space to obtain an overview of his exclusively private e-mails only after having checked the content of this same advertising message and only after having actively deleted it “.
So, she added, unlike banner advertisements or pop-ups, which appear in the margins of or separately from the private message list, the appearance of advertisement messages (…) in the user’s private email list hinders access to these mails in a manner analogous to that used for unsolicited emails (also called “spam”) insofar as such an approach requires the same decision-making on the part of the subscriber with regard to the treatment of these messages “.
In addition to occupying the space of the inbox, she denounced “ a risk of confusion “which can lead the Internet user” to be redirected against his will to a website presenting the advertisement in question, instead of continuing to consult his private emails “.
In short, inbox advertising falls within the prohibition of “ repeated and unwanted requests “, provided that the display of these advertising messages is sufficiently frequent and regular and that the recipient has not given his consent.
A risk of confusion
The likelihood of confusion argument was taken up by noyb in its complaint. “ Gmail advertising emails are displayed in the “Promotions” tab of the complainants’ inbox. This creates even more confusion among users: they generally expect to receive advertising emails to which they have subscribed, and will therefore legitimately think that the Google advertising emails at issue in this complaint are also promotional emails to which they have subscribed. subscribers – quod non [ce qui n’est pas (le cas), ndlr] “.
This confusion would be all the more important as Gmail “ offers automatic filtering of unsolicited emails where unsolicited direct marketing emails are supposed to be redirected to a “Spam” box “. Gold, “ Gmail advertising emails, which are also unsolicited – which cannot be ignored by Google – are knowingly directed to the “Promotions” inbox “.
The association maintains that the consent of the Internet users it represents has never been given, any more than the exceptions provided for by the ePrivacy Directive are likely to come into play.
The ePrivacy directive authorizes the sending of these letters on an exceptional basis when the prospected person is already a customer of the company and if the prospecting concerns similar products (or services) provided by the same company.
In the present case, “ the electronic contact details are not used for the direct marketing of similar products in the context of which they were previously collected », insists noyb who therefore insists on the absence of consent.
Lack of transparency
Another problem pointed out: the announcements that she listened to “ don’t mention [pas] the identity of the sender of commercial prospecting emails, and do not make it possible to determine who to contact to oppose the receipt of said emails “. So many contradictions again with the texts in force.
The association ultimately calls for an investigation that “ will need to determine who is the sender of the Gmail advertising emails, what data is collected and stored by these senders and Google, and how these senders can provide evidence of the complainants’ consent “. Another wish: an injunction ordering the cessation of these shipments and, as a cherry, a fine “ effective, proportionate and dissuasive “.
We have requested a comment from Google France, without return for the moment.