French Conseil d'Etat rules that acceptance of ToU is not valid consent for receiving marketing e-mails

By Ariane Mole


(Conseil d’Etat, 11 March 2015, 10e /9e SSR, n°368624) 

By its decision dated 11 March 2015, the French Conseil d’Etat (Administrative Supreme Court) positioned itself on a very interesting issue of how an internet user can provide his valid consent to allow the use of his personal data for e-marketing purposes.

Indeed, pursuant to Article L34-5 of the French Postal and Electronic Communications Code, sending marketing materials by electronic means (especially by email) cannot take place without the prior consent of the individual, except where the contact details of such individual were obtained directly from him in the context of a previous sale or service delivery, and if the e-mail to be sent concerns similar products or services.

In this case, the TUTO4PC Company, which proposes the installation of free softwares, set up a system where the acceptance of the terms and conditions of use automatically resulted also in the acceptance of the downloading of the company’s search engine on the user’s terminal, the acceptance of targeted advertisements based on the tracking of the user’s connections, and the acceptance of the personal data being sold to third parties.

The CNIL considered that such process did not constitute a valid form of consent as the user was not in a position to give a free and specific consent, i.e. a consent distinct from the acceptance of the general conditions. The CNIL therefore ordered the company, within two months, to collect specific consents from the users - apart from their acceptance of the terms of use - before using their data for marketing purposes, and to stop collecting and using their data without proper information of the users.

The TUTO4PC Company challenged the CNIL’s decision before the Conseil d’Etat, and argued that the information notice provided to users was sufficient, and that the terms and conditions of use were clear and explicit.

The Conseil d’Etat rejected the company's request, based on the fact that the acceptance of the terms and conditions of use cannot be considered as the specific consent which is required by Article L34-5 of the French Postal and Electronic Communications Code for receiving marketing e-mails.

The Conseil d’Etat also implicitly referred to the fact that where the possibility of ticking a specific box is offered to the internet user, allowing him to consent specifically to receiving marketing e-mails, then this can be regarded as specific consent which complies with legal requirements.