The Court of Justice of the European Union’s (the “CJEU”) recent judgment in Inteligo Media SA v. ANSPDCP (C-654/23), delivered on 13 November 2025, marks a crucial point in European data protection law. After years of ambiguity, the decision provides a degree of clarity on the interplay between the GDPR and the ePrivacy Directive, while simultaneously establishing that freemium business models fall squarely within the scope of legitimate direct marketing practices.
Inteligo Media SA (“Inteligo”), the Romanian publisher of legal news platform ‘avocatnet.ro’, implemented a freemium[1] model that allowed users to access six articles monthly without registration. To navigate and read additional content, users had the ability to create free accounts on the platform by providing email addresses and accepting contractual terms. This registration granted access to two additional free articles monthly and a daily newsletter titled "Personal Update”, which contained summaries of legislative developments with hyperlinks to full articles on the platform. For unlimited access, users could upgrade to a monetised "Premium Service" subscription.
The Romanian National Supervisory Authority for Personal Data Processing (“ANSPDCP”) imposed a fine within the ballpark of €9,000, alleging that Inteligo collected email addresses for one purpose, namely contract execution, however utilised them unlawfully for another purpose, direct marketing, without obtaining GDPR-compliant consent. The ANSPDCP contended that the processing violated Articles 5(1)(a) and (b), 6(1)(a), and 7 of the GDPR.
The CJEU first addressed whether the "Personal Update" newsletter constituted direct marketing within Article 13(1) and (2) of the ePrivacy Directive. Building upon established jurisprudence, the CJEU confirmed that to qualify as direct marketing, a communication must pursue a commercial purpose and be addressed directly and individually to a consumer.
On the contrary, ANSPDCP argued that the newsletter's editorial content precluded direct marketing classification. The CJEU rejected this formalistic approach. Despite containing informative summaries of legal developments, the newsletter's ultimate objective was promotional. The underlying objective of such a newsletter was to entice users to exhaust their free article allocation and to subscribe to the “Premium Service”. As Advocate General Szpunar observed,[2] the newsletter served to promote paid content by directing users via hyperlinks to the platform, where they encountered paywalls after consuming free articles.
The CJEU emphasised that direct marketing classification wholly depends on the communication's commercial purpose, whether inferred from content alone or the structure of the sender's business model. Since the newsletter appeared directly in users' private email inboxes and was solely aimed to generate subscription revenue, it unequivocally constituted direct marketing.
2. Sale of a Product or Service in the Freemium Context
Most significantly, the judgment addresses whether email addresses obtained through free account creation qualify as being collected "in the context of the sale of a product or a service" under Article 13(2) of the ePrivacy Directive. This provision enables the "soft opt-in" exception to the general consent requirement for direct marketing communications.
According to commonly accepted definitions, a "sale" typically requires remuneration in exchange for goods or services. However, the CJEU recognised that service remuneration need not be paid directly by the recipient. Drawing on its jurisprudence regarding Directive 2000/31/EC on electronic commerce, the Court noted that free service provision for advertising purposes, with costs incorporated into the price of goods or services sold, constitutes remuneration in of itself.
For context, in Inteligo’s freemium model, users obtained free access to limited content and the newsletter by accepting contractual terms. This arrangement served an advertising purpose, that is promoting the platform's paid content with costs subsumed in subscription prices. The CJEU concluded that such indirect remuneration, included in the full subscription price, satisfies the payment requirement, rendering the transaction a "sale of a product or service" under Article 13(2) of the ePrivacy Directive.
3. Lex Specialis principle: ePrivacy Overrides GDPR Article 6(1)
The CJEU addressed whether Article 13(2) ePrivacy compliance required separately demonstrating a GDPR Article 6(1) lawful basis. The Court definitively answered in the negative. Article 95 GDPR provides that the Regulation "shall not impose additional obligations" where specific ePrivacy obligations exist with the same objective. The CJEU held that Article 13(2) ePrivacy "governs comprehensively the conditions and purposes of the processing"[3] and imposes "specific obligations”.[4] Consequently, where processing falls within Article 13(2)'s scope, lawfulness derives exclusively from that provision; Article 6(1) GDPR conditions do not apply.
Authoritatively, this resolves longstanding uncertainty about whether ePrivacy provisions provide standalone legal bases. The European Data Protection Board had previously suggested in Opinion 5/2019 that ePrivacy rules take precedence, but implementation varied across Member States. The Inteligo judgment confirms this hierarchical relationship through the lex specialis derogat legi generali principle.
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All in all, the judgment provides essential clarity for digital businesses operating freemium models. By confirming that free accounts with indirect remuneration constitute "sale of service" and establishing ePrivacy provisions as autonomous legal bases, the CJEU validates common commercial practices while maintaining robust consumer protection through mandatory opt-out mechanisms.
For entities operating subscription-based services with free tiers, this ruling offers both a level of vindication and a roadmap for compliance. For practitioners, this reassessment of existing frameworks was essential.
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For more information regarding the ePrivacy Directive, the GDPR, and their interaction, do not hesitate to contact us at info@gtg.com.mt
Author: Dr Terence Cassar & Dr J.J. Galea
[1] ‘Freemium’ is a business model where a basic product or service is offered for free, while a premium version with enhanced features, services, or content is sold for a fee.
[2] Para. 32, Opinion ECLI:EU:C 2025 :213, AG Szpunar
[3] Para 68, C‑654/23
[4] Para 66, ibid