The Advocate General has recently issued an opinion in Case C-317/25 about whether a company can send marketing to people who agreed that their personal data could be used by another company’s partners, where those partners were not actually named.
In 2021, Groupe Canal+ sent electronic marketing to around 3.9 million people. Their details had originally been collected by two internet service providers. Although those customers had agreed that their data could be used for marketing by the providers’ “partners”, they had not been told who those partners were. The French data protection regulator, CNIL, decided that this was not valid consent for Groupe Canal+ to market to them and fined the company €600,000.
The French courts referred the case to the CJEU to consider whether consent to marketing by a general category such as “partners” is enough, or whether the particular company carrying out the marketing must obtain fresh consent.
Advocate General Dean Spielmann’s view is that fresh consent is required. For consent to be valid, people need enough information to understand what they are agreeing to. In particular, they need to know the identity of the company that will use their data. Simply agreeing to marketing from an internet provider’s unnamed “partners” does not amount to agreeing to receive marketing from any company that happens to fall within that description.
As a result, if the company that ultimately sends the marketing was not identified when the person originally gave consent, that company must obtain fresh consent before marketing to them, at the latest when it first contacts them. Giving the recipient an unsubscribe option when the first message arrives does not solve the problem because the marketing has already started by that point.
The Advocate General also said that, even if consent to marketing by a category of companies could sometimes be sufficient, that category would need to be described clearly enough for someone reasonably to expect contact from the particular company concerned. A description as broad as “partners” is too vague.
Importantly, this is the Advocate General’s Opinion, not the Court’s final judgment. It is not binding on the Court, which will give its judgment at a later date.
