24.03.2022 11:20
The Czech Electronic Communications Act has been amended to fundamentally change the existing rules of telemarketing, i.e., information about offers of goods and services via telephone calls, to put it simply. When can a telephone call be used for marketing offers? How should consent be properly given? Read on for more details:
At the end of last year we informed you about new rules on cookies introduced via an amendment to the Electronic Communications Act.
Let us follow up on this information by providing details on related changes to the same Act that concern telemarketing, i.e. information about offers of goods and services by telephone.
The amendment to the Electronic Communications Act, which fundamentally changed the existing rules, was adopted, among other things, as a response to some extremely inappropriate business practices, particularly in the energy sector, whereby customers were solicited and forced to switch their energy suppliers via telephone calls.
The hitherto legal rules have been designed in such a way that if a user or subscriber (natural or legal person) of an electronic communications service (in simple terms, a user of a specific telephone number) did not wish to be contacted with marketing offers of goods or services by third parties, they could have approached their service provider free of charge and demand that their contact details include a note in the publicly available subscriber (telephone) directory, within the meaning of Section 95 of the Electronic Communications Act, stating that they did not wish to be contacted for marketing purposes. The www.1188.cz website is an example of such a publicly available subscriber directory.
If the directory entry did not contain such a note, randomly generated telephone numbers could have, for example, been used to call subscribers with offers of goods or services. It was an administrative infraction when such a telephone contact was made in spite of a prior refusal to be contacted.
However, the law has been fundamentally changed. The opt-out principle was replaced by the opt-in principle, i.e. unless an express consent is given, it is deemed that the person concerned has not agreed to being contacted.
More specifically, no marketing (or any similar form of offering goods or services) to persons in the directory, who have not opted in for marketing offers, is permitted. Randomly generated numbers are deemed to be a subscriber directory in this case.
Additionally, it is also prohibited to use these directories or services of electronic communication for marketing purposes via automated calls without human involvement (automatic calling devices).
The new rules come into effect as of 1 January 2022, but will become fully operational as of mid-2022 when the time period will have lapsed for persons listed in the directories as at 1 January 2022 to give their opt-in consent to being contacted for marketing purposes. Those who will not give their consent with marketing offers within the above time limit will be deemed to have opted out and therefore it will no longer be possible to contact such persons for marketing purposes.
Violations of the rules constitute, as before, an administrative infraction which carries a penalty of up to CZK 50 000 000 or 10 % of the violator´s net sales for the last tax period, whichever is higher.
The amendment of the Electronic Communications Act, as briefly described above, should not effect, given its purpose, the possibility to offer own goods and services to own customers, be it by phone or electronically. The same applies to persons (including legal persons) who have already given their consent in accordance with data protection legislation, to information about offers of your own goods or services and to information about offers of goods or services of your partners.
In this context, we refer to the position of the Czech Telecommunications Office which in its Monitoring Report No. 7 of 2021 stated: „If the subscriber’s consent is not indicated in the subscriber directory, it will be assumed that he/she does not wish to receive such marketing communication. This will not, of course, apply to situations where the subscriber is contacted by a doctor, service provider, seller of goods and others who have obtained the permission to “call” their clients under the privacy rules by the client’s consent, a legitimate business interest or another lawful reason“.
The points made so far and the new rules of the Electronic Communications Act on telephone offers of gods or services can be briefly summarized as follows:
- only persons who are listed in the public subscriber directory as consenting to such contact may be contacted by telephone with a marketing offer of goods or services;
- if a person´s contact details are listed in the public directory and not accompanied by information that the user gives consent to being contacted with an offer of goods or services, the user cannot be contacted for that purpose;
- if the person´s telephone contact details are not listed in the public directory, the user is deemed not to wish to be contacted for marketing purposes;
- notwithstanding the foregoing, a telephone contact may be made for a marketing offer if it is a telephone number that a person has published on their website for that purpose, i.e., for example, a telephone contact for the sales department that is accompanied by the information that the company may be contacted with offers of certain goods or services;
- randomly generated telephone numbers must be checked against public directories whether consent with contact for marketing purposes has been given within the meaning of the first bullet point. If the directory list does not contain such consent or if the person is not listed at all, they will be deemed not to have given consent and must not be contacted for marketing purposes by telephone;
- marketing offers of goods or services may be made by telephone with respect to own customers and to persons who have given their consent to such contact. In particular, any targeting (profiling) of offers to natural persons must be done in respect of the legal provisions on the protection of personal data.
Although there is a six-month time period to modify the public subscriber directories, it is advisable to follow the rules as of now.
Let us conclude by pointing out that the new rules are not, once again, free of ambiguity. It remains to be seen how they will be interpreted and applied in practice, in particular by the Czech Telecommunications Office (although much can be anticipated – see above) and the Office for Personal Data Protection. If the position of these or other public authorities should lead to different interpretation than above, we will keep you informed.
Please do not hesitate to contact us in case of any questions or lack of clarity.
This update was written by doc. JUDr. Jakub Morávek, Ph. D.