On 13 November 2025, the Court of Justice of the European Union delivered its long-awaited judgment in the Inteligo Media case (C-654/23), providing important guidance on the lawfulness of email marketing under the ePrivacy Directive. The decision is of particular significance for businesses operating registration-based or freemium business models that send regular email communications to their existing users.
The core message of the judgment can be summarised as follows: under certain conditions, the sending of marketing emails does not require a separate legal basis under Article 6 of the General Data Protection Regulation (GDPR), provided that the so-called soft opt-in exception set out in Article 13(2) of the ePrivacy Directive is applicable.
Background of the case and the essence of the dispute
Inteligo Media operated an online news portal where users could create a free account upon registration. This account provided access to a limited number of articles and included a daily email newsletter. Email addresses were collected during registration and subsequently used to send personalised newsletters. Although the newsletters contained editorial content, their functional purpose was to steer users towards paid services, in particular the purchase of a full subscription.
The dispute centred on whether such emails constitute direct marketing, and whether the email address provided during registration was collected “in the context of a sale”, which is one of the key conditions for applying the soft opt-in exception. In this context, the Court also had to consider whether the sending of newsletters requires an independent legal basis under the GDPR, or whether the rules of the ePrivacy Directive apply exclusively as lex specialis.
Interpretation of “direct marketing”
The Court confirmed that the concept of direct marketing must be interpreted broadly. An email qualifies as marketing even if it does not consist exclusively of promotional content but also contains editorial or informational elements, provided that its actual purpose is to promote paid services.
The judgment emphasises that form cannot override function. Where a message is individually addressed to the recipient and serves an economic interest—such as directing users from free access limits towards paid subscriptions—it constitutes direct marketing.
What does “sale” mean in freemium models?
A particularly important finding of the judgment is that the notion of being “in the context of a sale” is not limited to classic transactions involving direct monetary payment. According to the Court, the creation of a free account may also qualify as a sale where it forms part of a business model aimed at promoting paid services.
The Court held that an indirect economic relationship is sufficient: if the costs of the free service are economically embedded in the pricing of paid offerings, and the purpose of registration is to facilitate later subscription, the soft opt-in exception may apply.
The relationship between the ePrivacy Directive and the GDPR
One of the most significant legal consequences of the judgment is the explicit confirmation that Article 13(2) of the ePrivacy Directive constitutes lex specialis in relation to the GDPR. Where this provision governs a specific email marketing activity, its conditions are exhaustive, and no additional legal basis under Article 6 GDPR is required.
Practical implications and the Hungarian legal framework
In light of the above, the Inteligo Media judgment clearly establishes that where marketing based on an existing customer relationship falls within the soft opt-in exception set out in Article 13(2) of the ePrivacy Directive, this alone ensures the lawfulness of the data processing. In such cases, the general legal bases under the GDPR, such as consent or legitimate interest, are not relevant.
This conclusion, however, conflicts with the current Hungarian regulatory framework. At present, Hungarian legislation imposes stricter requirements on the sending of electronic advertising messages than those laid down in the ePrivacy Directive. Under Section 6(1) of Act XLVIII of 2008 on the Basic Conditions and Certain Restrictions of Economic Advertising Activities (Grtv.), unless otherwise provided by law, advertising addressed to a natural person by means of direct contact (direct marketing), in particular by electronic mail or other equivalent individual means of communication, may be communicated only if the recipient has given prior, explicit and unambiguous consent.
One might expect a specific exception to be found in Act CVIII of 2001 on Electronic Commerce Services and Information Society Services (Eker tv.). However, no such exception currently exists, as that Act merely refers back to the provisions of the Grtv. As a result—when viewed in light of the Inteligo Media judgment—the Hungarian legislature has created, and continues to maintain, a situation that is incompatible with EU law. The soft opt-in rules have therefore still not been fully transposed into the Hungarian legal system, leading to continued legal uncertainty. Under EU law, this legislative omission may trigger the vertical direct effect of the ePrivacy Directive. In order to preserve legal certainty, it would be essential for the Hungarian legislature to intervene without delay and amend the relevant rules in line with EU law.