The basic rule for marketing activities towards natural persons is, as is well known, that of consent: in order to send advertising for a product or service by email, for instance, consent must first have been obtained from the recipient. In some cases, however, it is lawful to send promotional communications by email without first obtaining the consent of the recipients.
This is the soft-spam case provided for in Article 130(4) of d.lgs. no. 196/2003.
However, soft-spam is an exceptional case, applicable in strict compliance with the limits of the law.
Promotional e-mails may only be sent to persons who are already customers of the sender.
The company engaged in marketing activities must also have acquired the email addresses in the context of a previous sale of a product or service, and the promotion must only refer to the direct sale of products or services similar to those already purchased.
Finally, the recipient must have been given the opportunity to object to such sending (opt-out), which must also be ensured during the transmission of each communication.
In a judgment of June 2025, the Italian Corte di Cassazione clarified the stringent requirements to be met to benefit from the soft-spam exception, reiterating a precedent of its own.
According to the judges, the rules in question use the term “sale” in a technical sense: consequently, it is necessary that a contractual relationship for consideration has been established between the controller and the recipient. This would not be the case where the data subject merely registered on a website or concluded a trial contract or a free-of-charge contract with the sender.
In the case examined, in particular, it was held to be unlawful for a website to send e-mails to registered users of that website without having acquired specific consent, but solely on the basis of such registration. This was because registration on that site, which was a mere aggregator of offers and not an e-shop, could not give rise to a “sale” in the strict sense.
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