Unsolicited commercial information following consumer law amendment

On December 25, 2014 the Consumer Rights Act of May 30, 2014, intended to increase the scope of consumer interest protection, entered into force. Its enactment was accompanied by concern about the legality of sending inquiries for consent towards being sent commercial information, which was previously a common practice.

This issue was previously covered by the Act on the Provision of Services by Electronic Means and related only to a recipient defined as a natural person. According to Article 10 of this Act:

1. It is prohibited to send unsolicited commercial information addressed to a specified recipient being a natural person by electronic means, in particular, by e-mail.
2. Commercial information shall be deemed solicited if its recipient has grated consent to receiving such information, in particular, by providing an e-mail address identifying such recipient.

The practice of sending unsolicited commercial information would be prohibited only if performed by electronic means of communication – such as e-mail or cell phone. At the same time, this provision does not ban sending inquiries regarding the possibility of sending commercial information, but one should be careful so that the inquiry itself is not of a commercial nature.

The situation has changed considerably after the enactment of the new consumer act that introduced a seemingly minute change to Article 172 of the Telecommunication Law Act. The amended provision reads as follows :

1. It is prohibited to use telecommunication terminal equipment and automated calling systems for the purposes of direct marketing unless the subscriber or end user has granted their prior consent to the above.
2. The provision of clause 1 shall be without prejudice to prohibitions and restrictions as to sending unsolicited commercial information, as resulting from separate laws.
3. The use of means specified in clause 1 for the purposes of direct marketing may not be performed at the consumer’s expense.

The above mentioned provisions have substantially tightened the liability regime as regards the so called mailing. This prohibition relates to the use of telephone, computer or tablet for the purposes of direct marketing unless the subscriber or end user has granted their prior consent to the above. What’s important, the scope of the new provision includes the end user defined, under the Telecommunications Law Act, also as a legal person or other collective entity.

Thus, we are facing a problem on how we are supposed to understand the concept of direct marketing and, by extension, on what really is prohibited without prior consent.

Direct marketing has not been defined in any applicable law, but based on the analysis of the individual provisions we may infer that it constitutes a wider concept than commercial information, as specified in Act on the Provision of Services by Electronic Means. Direct marketing should be understood as providing clients directly with information or proposals regarding the sale of commodities or services. In light of the current decision-making practice of the President of UOKIK (Office for Competition and Consumer Protection), in our opinion, even an inquiry for consent to being sent marketing information should be deemed as direct marketing. This results in a vicious circle that de facto makes it impossible to legally approach clients by e-mail or phone. The problem we’re describing is all the more important to the current practice of entrepreneurs employing direct marketing that the failure to comply with the obligation to obtain the aforementioned consent to being sent commercial information may result in imposing a financial penalty in the amount of 3% of the revenue achieved by such entrepreneurs in the calendar year preceding imposing the penalty.

We should not forget that the new provisions regarding the so called mailing relate not only to natural persons but also to legal persons. Sending commercial information to the addresses of management offices, company branches and institutions entails the requirement to obtain a prior consent for such activities pursuant to Article 172 of the Telecommunication Law Act.

The amendment has entered into force relatively recently, so there is no decision-making practice on the part of the President of UOKIK or the President of UKE in relation to the new Article 172 of the Telecommunication Law Act allowing us to draw conclusions regarding the interpretation of this provision. There are no decisions of the Court of Competition and Consumer Protection addressing this matter either. Therefore, in the current legal circumstances, we advise you to exercise restraint in preparing messages containing inquiries for consent to be sent marketing information at least by the time the decision-making practice of competent courts and administration bodies dispel doubts as to the above. For the time being, entrepreneurs should focus on creating the base of subscribers having already granted their consent to being contacted for direct marketing purposes according to Article 172 of the Telecommunication Law Act – whether as a result of ticking check boxes found on the website of entrepreneurs or concluding appropriate agreements with clients.