Court case 490202 – Court Ruling (France, 2025)

In 2021, the Canal+ Group (controller) carried out commercial prospecting by electronic means, targeting approximately 3.9 million people. The controller did not directly seek the consent of the persons concerned. Instead, they contacted people whose personal data and consent for marketing purposes had already been collected by two partner internet service providers (ISPs) through data collection forms. The ISPs' subscribers were invited to check a box to give their consent to the use of their personal data for prospecting purposes by the ISPs’ "partners". The names of these partners were not specified in the form, nor were they accessible via a hyperlink or by any other means. The CNIL (French DPA) conducted multiple inspections. On 12 October 2023, the DPA found that the controller had failed to comply with their obligation to obtain valid consent from the individuals concerned for the purposes of electronic marketing, in violation of Article 7 GDPR. The controller brought an action for annulment of this decision before the Council of State. The Council of State considered that this dispute raised a question as to whether the consent given by the data subject to a first collector, allowing their data to be used by a category of recipients for the purpose of electronic prospecting, can be regarded as informed consent within the meaning of Article 4(11) of the GDPR, read in conjunction with articles 13(1) and 14 of the same Regulation, and article 13 of the Directive of 12 July 2002 on privacy and electronic communications. A further question arises as to whether the degree of specificity of the term « category of recipients » is significant, or whether, as in the present case, it may simply refer to any « partner » of the initial data collector. The Council of State considered that these questions are decisive for the resolution of the dispute and present serious difficulties. The Council of State therefore referred the matter to the Court of Justice of the European Union in accordance with the article 267 of the Treaty on the Functioning of the European Union, and stayed the proceeding on the application filed by Groupe Canal+ until the Court has ruled.