The Act of July 12, 2024, on Electronic Communications Law will come into force on November 10, 2024. From that date, new regulations concerning the transmission of commercial information will apply. The proposed solutions are similar to the current regulations but also include some new elements.
The new regulation will replace the current Article 172 of the Telecommunications Law and Article 10 of the Act on Providing Services by Electronic Means. It will combine the provisions of both laws.
According to Article 398(1) of the Electronic Communications Law:
The use of:
- automatic calling systems,
- telecommunications terminal equipment, particularly within the use of interpersonal communication services
– for the purpose of sending commercial information as defined by the Act of July 18, 2002, on Providing Services by Electronic Means, including direct marketing, to a subscriber or end user is prohibited unless they have given prior consent.
The user’s consent to the use of automatic calling systems and telecommunications terminal equipment for commercial information purposes will, according to Article 400 of the Electronic Communications Law, be subject to applicable data protection regulations. This means, as indicated by the legislator in the explanatory memorandum, that consent must be voluntary, specific, informed, and unambiguous, expressed through a statement or a clear affirmative action indicating permission for the processing of personal data for marketing purposes.
The difference in the new regulation compared to previous provisions is that Article 398 of the Electronic Communications Law does not apply exclusively to natural persons, as was the case with the Act on Providing Services by Electronic Means, but also covers legal entities.
Sending commercial information without the recipient’s consent will constitute an act of unfair competition. Furthermore, according to Article 446(5) of the Electronic Communications Law, the President of the Office of Electronic Communications (UKE) will impose a fine by decision if the obligation to obtain the end user’s consent for sending marketing information is not fulfilled, amounting to up to 3% of the offending entity’s revenue or up to PLN 1,000,000, whichever is higher.
