On November 10, 2024, the new Electronic Communications Law will come into effect, replacing the current Telecommunications Law. This change arises from the necessity to implement Directive (EU) 2018/1972 of the European Parliament and the Council, which establishes the European Electronic Communications Code. Notably, the scope of entities covered by the law has been expanded to include providers of non-number-based interpersonal communication services (e.g., internet messengers and email services). Importantly, this new regulation, like the Telecommunications Law, will apply not only to electronic communication businesses but also, as outlined below, to all businesses sending direct commercial communications to users.
This article will explain:
Does the Electronic Communications Law Impose Obligations on Businesses Outside the Electronic Communications Sector?
The Electronic Communications Law introduces changes not only for the telecommunications sector but also for other entities engaging in marketing activities involving direct communication with users, regardless of the communication channel. The provisions apply to businesses using channels such as email, SMS, internet messengers, and phone calls to send commercial communications.
The law establishes a uniform set of rules for obtaining consent for marketing communications across all channels. This eliminates previous ambiguities for businesses about how to properly obtain consent for sending commercial information. The law explicitly confirms that separate consent must be obtained for each communication channel (e.g., phone, SMS, email).
Consent must be clear, specific, and given before the initiation of commercial communications. It should specify the communication channel, the purpose, and the entity conducting the marketing activity. If marketing is conducted by multiple legal entities, users should be able to choose which entities they grant consent to. The law aims to protect users from unsolicited information and prevent the misuse of generalized consents that cover multiple entities without explicit identification.
Does Protection Against Unsolicited Commercial Information Apply Only to Individuals?
The new rules also require obtaining consent for sending commercial information to organizational units, not just individuals. This applies to phone marketing as well as other communication channels like email or messaging apps. For instance, the mere presence of an email address on a company website does not constitute consent for sending marketing materials to that address.
What Are the Consequences of Failing to Obtain Proper Consent for Sending Commercial Communications?
The President of the Office of Electronic Communications (UKE) can impose an administrative penalty for failing to obtain proper consent for sending commercial communications. A business that does not comply with the regulations may face an administrative fine of up to 3% of its revenue from the previous calendar year or 1 million PLN, whichever is higher.
These provisions aim to discourage the sending of unsolicited commercial information and protect users from spam and aggressive marketing. Therefore, businesses should adapt their marketing processes to the new regulations to avoid the risk of substantial fines.
Summary
The new Electronic Communications Law introduces changes extending beyond the telecommunications sector. Its provisions impose new obligations on all businesses engaging in direct marketing, regardless of the communication channel. The introduction of clear rules regarding consent for sending commercial information is designed to better protect users and regulate the principles of direct marketing.
With the law taking effect on November 10, 2024, many businesses still have not adequately prepared. Now is the last opportunity to ensure compliance with the updated regulations and avoid potential complications.
Author: Natalia Dobecka, Attorney-at-law
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