Understanding soft opt-in: When free deals count as consent under ePrivacy Rules

On 13th November 2025, the CJEU published its decision in Inteligo Media SA v ANSPDCP (C-654/23). Under the ePrivacy Directive (2002/58), organisations need consent before they can send direct marketing emails to consumers. There’s an exception (the “soft opt-in”) when the organisation obtains the subscriber’s details in the course of the sale of a product or service, when the direct marketing is for that organisation’s similar product or service, where the subscriber was offered the chance to object to direct marketing, and where each direct marketing email contains an unsubscribe option. It’s been unclear whether offers to access services “for free” – such as limited free trials – could benefit from this exception.  The Inteligo Media decision confirms that they do. The decision is specific to the tiered subscription model offered by Inteligo Media and emphasized that the exception should be narrowly interpreted. Not all “free” services will benefit from this decision.

Inteligo subscription system: free and paid subscription with newsletter

Inteligo Media provided information about new legislation in Romania. Six articles per month could be viewed completely free of charge. To get more information, users have to subscribe. Users could subscribe, for free, for an extra two articles and a daily newsletter. They could also pay for unlimited access and a fuller newsletter. The Romanian DPA argued that Inteligo Media could only process registration details for subscriptions and to send the free newsletter with consent under GDPR (which it did not have). Inteligo Media argued that it was covered by the soft opt-in exception and that GDPR did not apply.  

“Remuneration” is key for a sale: but a free offer is ok as long as someone is paying

The CJEU held that the free subscription did amount to a “sale”. The CJEU noted that a sale necessarily entails payment in exchange for goods or a service and it must involve remuneration [53]. However, the remuneration could be indirect; it doesn’t have to be this specific consumer who pays [56]. The remuneration here was covered by the paid version of the subscription. The CJEU also noted that the soft opt-in was an exception to the general consent rule and so has to be narrowly construed. This is likely to limit the application of the decision. In addition to the volume based free subscription (as here), time limited subscriptions would also seem to be covered – as the person who continues the subscription beyond the free period would show that there is remuneration. However, offers of free white papers or similar, where there is no version which includes remuneration, would not meet the requirement – meaning that marketers would need to rely on consent, not opt-out, to send marketing to those prospects. 

The fact something is informative doesn’t stop it being marketing

The daily newsletter containing information about new legislation still amounted to direct marketing. The fact that it had informative/ valuable content didn’t stop it being direct marketing, as its objective was to show the worth of the paid-for service [45]. The key test is that there is a commercial purpose for the communication and that it is addressed directly and individually to a consumer. This meant that Inteligo Media’s newsletter met the criteria for the soft opt-in; it was sent directly to individual subscribers to show the commercial value of the paid service and, although the service was free, there was still indirect remuneration for the newsletter, paid by those who took the full service.

ePrivacy rules for direct marketing displace GDPR Art. 6

Lastly, the CJEU confirmed that where the ePrivacy Directive addresses the same topic as GDPR, then its provisions apply instead of those in GDPR. In this case, Art. 13 of the ePrivacy Directive sets out the exclusive basis on which direct marketing emails can be sent to subscribers – either based on consent or opt-out. This displaces Art. 6 of GDPR; there can be no other lawful bases for such communications.  

Have a question on this decision? Get in touch with Ruth Boardman or subscribe to our Privacy Pulse newsletter here. You can also find more updates by visiting our Data Protection insights page here.