ePrivacy — Soft Opt-In after Inteligo (Nov 2025)

Status: Draft for FCR Media Ireland legal / DPO review. Not legal advice. Prepared to document the basis for marketing-channel decisions on the prospect base so the distinction below is on the record before any send.

Date: 2026-06-09

Purpose: Two different cohorts in the prospect universe are reachable for electronic marketing under two different legal bases. They must not be conflated — the authority that unlocks one does not unlock the other. This note states the cite, the holding, its limits, and which FCR segment each basis attaches to.

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The governing framework

• Electronic marketing in Ireland — email and SMS alike — is governed by ePrivacy (the European Communities (Electronic Communications Networks and Services) (Privacy and Electronic Communications) Regulations 2011, S.I. 336/2011), transposing Directive 2002/58/EC, sitting over GDPR.
• SMS is “electronic mail” under that regime — the same rules that govern marketing email govern marketing SMS.
• Default rule = prior consent. The soft opt-in (S.I. 336/2011 reg. 13, mirroring Art. 13(2) of the Directive) is the exception: you may market by email/SMS without prior consent where (a) the contact detail was obtained in the context of a sale of a product/service, (b) the marketing is for similar products/services, and (c) an opt-out was offered at collection and in every message.
• A recorded opt-out is an absolute stop — no marketing of any kind. (FCR: 53,742 opted-out → correctness/onboarding contact only.)

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The case: Inteligo Media SA — C‑654/23 (CJEU, 13 November 2025)

Origin. Referred from Romania. Inteligo runs a mostly-paywalled Romanian legal-news site; creating a free account unlocks a few extra articles plus a daily newsletter. It sent thousands of those newsletters daily with no explicit marketing consent. The Romanian DPA (ANSPDCP) fined it for lacking GDPR-grade consent; the interaction of ePrivacy and GDPR was referred to the CJEU.

Two holdings that matter:

1. “Sale” under the soft opt-in does not require direct payment. Indirect remuneration is enough. Creating a free account that grants limited content and a free newsletter can count as a “sale,” because the free service is part of a broader commercial strategy designed to funnel users toward a paid offering. So the email obtained at sign-up was obtained “in the context of the sale of a product or service.”

2. Where the soft opt-in conditions are met, no separate Article 6 GDPR basis is needed on top. ePrivacy is lex specialis; Art. 13(2) is self-standing. This kills the older argument (the Belgian DPA’s line) that you needed both the soft opt-in and a GDPR lawful basis.

The limit that keeps it honest. Inteligo widens who counts as a customer — but it does not remove the requirement that the contact detail was obtained in the context of that (free) sale. The whole case turns on the user registering and handing over their email. It does not reach contacts who never signed up and never took anything.

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Application to FCR — two doors, kept separate

Door 1 — Inteligo soft opt-in → the free-funnel / Listing Manager base

Who: businesses that took a free FCR product — a free Listing Manager scan, a free Golden Pages account, a claimed listing. Under Inteligo these free users are arguably “customers.” What it permits: market to them by email and SMS about similar Golden Pages / SayMore products under the soft opt-in, no separate consent required (subject to similar-product + opt-out-in-every-message conditions). Why it’s valuable: Listing Manager is the acquisition front door — this converts the free funnel into a legitimately marketable base, and it is the basis on which on-file mobile-only numbers in that cohort could be worked by SMS. Condition: the free sign-up / claim must be real and evidenced (we hold the detail because they registered), and the message must be for similar products with an opt-out.

Door 2 — B2B email carve-out → the genuinely cold (unlisted, sourced)

Who: businesses we sourced from registration/web data that never signed up, never gave us an email, never took a free product (the cold NOF pool). Why Inteligo does NOT reach them: there is no “context of a sale,” free or otherwise. Citing Inteligo here is the overreach a regulator would dismantle. What applies instead: the separate B2B route — corporate subscribers on an opt-out basis under the ePrivacy treatment of business subscribers, and/or the published commercial-activity email-address carve-out — not this case. [verify with DPO: scope of corporate-subscriber treatment under reg. 13, and its application to SMS-to-mobile vs business email]

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Bottom line for any send

• Inteligo is the authority for marketing to the free-listing / Listing Manager base (email + SMS, similar products, opt-out).
• The B2B carve-out is the authority for the genuinely cold ones.
• Two different doors. Keep them straight. Do not lean on Inteligo for cold scraped contacts.
• Opt-outs are never marketed under any door.

Open actions

1. Quantify the free-funnel cohort — how many in-universe businesses actually took a free LM scan / claimed a listing / created a free GP account (the Door-1 population, incl. its mobile-only count). Until quantified, the SMS opportunity is directional, not sized.
2. DPO to confirm the corporate-subscriber (B2B) treatment under S.I. 336/2011 reg. 13, and specifically whether it extends to SMS to a mobile number (mobiles often read as individual subscribers).
3. Similar-product test + opt-out mechanics — confirm the GP/SayMore product set is “similar” for the free-funnel base, and that opt-out is present at collection and in every message.
4. DPO sign-off on this note before it backs any campaign.

Cite, verbatim, for the file: Inteligo Media SA, Case C‑654/23, Court of Justice of the European Union, judgment of 13 November 2025.