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Generally on act no. 480/2004 coll.

 
 
 

The Act implements in the legal system of the Czech Republic the Directive on electronic commerce No. 2000/31/EC, in view of the Directive on privacy and electronic communications whose Article 5 stresses the duty of the members states of the European Union to safeguard confidential nature of communications by means of a public communications network and publicly available electronic services.

Therefore, the basic idea of Act No. 480/2004 Coll. is the strengthening of privacy protection of users of the information society services who may be every individual or legal person (see definition of users as contained in Article 2(e) of the Act). It is obvious that the legislator aimed at eliminating any costs on the part of users in respect of unsolicited and in their result annoying commercial communications delivered to them via electronic mail (see definition of electronic mail as contained in Article 2(b) of the Act). In this connection, the form of electronic communication is immaterial.

The term dissemination of commercial communications, pursuant to Directive No. 2000/31/EC, similarly as pursuant to Act No. 480/2004 Coll., shall apply to all forms of communications designed for direct or indirect promotion of either goods or services (including training, pay information, etc.) by any specific subject, that is, also including any offers of free services as long as the subject is a so-called economic operator, i.e., an entity involved in economic activities (hereby, all non-business activities of such economic operators are excluded from the scope of the Act, such as their auxiliary foundation or charity activities). The Act does not apply to the execution of any direct mutual contacts between users of electronic mail, either in the form of a text, voice, sound or image message, as long as it takes place outside their commercial or professional activities. Similarly, the Act shall not apply to the television or radio broadcasting; on the other hand, the Act shall apply to a service like, for example, video on demand.

Act No. 480/2004 Coll. also lays down the terms and conditions of the performance of so-called regulated profession, however, rather in respect of the form of such activity – offer of goods or services belonging to the scope of the information society services information society, subject to expectation of certain self-regulatory effects from the individual professional associations or professional chambers established by statute, which have also been entrusted with the authority of a supervisory subject.

Consent with the provision of commercial communications pursuant to Article 2(f) of Directive 2002/58/EC of the European Parliament and of the Council of 12 July 2002 concerning the processing of personal data and the protection of privacy in the electronic communications sector the ‘consent’ by a user or subscriber corresponds to the data subject´s consent pursuant to Directive 95/46/EC, which reads: ‘the data subject’s consent’ shall mean any freely given specific and informed indication of his wishes by which the data subject signifies his agreement to personal data relating to him being processed.

In this case, such consent shall mean any freely given specific and informed indication of will expressed by the addressee towards the sender allowing them to make use of details of their electronic contact for the distribution of commercial communications. The relevant person is required to give an informed consent, that is, the consent must indicate who provides it to whom and for what purposes. The consent must be issued in advance (prior to the dispatch of the commercial communication) and must be evident.

In mid-2006, Act No. 480/2004 Coll., on certain information society services, witnessed certain changes. An amendment to Act No. 214/2006 Coll. became effective as of 1 August, which in part – also under the influence of the assessment of the existing legislation by the European Commission - introduced anew the option of sending commercial communications to customers of the sender (that is, entities which have had certain previous commercial relations to the sender), if they concern offers of similar products or services, also without their previous consent, unless the customer originally refused the use of the details of their electronic contacts for the delivery of such commercial communications. Yet another condition stipulates that the sending of any such commercial communications must be discontinued whenever the customers withdraw their consent. Customers must be able to effect such withdrawal in a simple way, free of any charge or on the account of the sender.

The introduction of the ‘opt-out’ principle into the distribution of commercial communications between entrepreneurs and their customers has certainly made their mutual commercial communications simpler. On the other hand, it should be admitted in the light of application findings that this is a mere cosmetic modification of the relevant legislation because the vast majority of issues relating to unsolicited commercial communications lies in another area. Actually, commercial communications continue to be aimed at acquiring new customers rather than at informing the existing clients. Here, the obtaining of any prior consent with the sending of commercial communications is fairly difficult because it is not possible to make use in this case of this specific "guaranteed" channel, i.e., electronic mail. That also represents the reason why this duty has been so often circumvented and why it actually represents the most frequent cause for instituting administrative proceedings.

The Act No. 480/2004 Coll., on certain information society services was amended by the Act No. 468/2011 Coll. effective from 1 January 2012. The amendment has brought about several adaptations of which the following are especially worth mentioning:

  • The notion of commercial communications was redefined;
  • Investigations may primarily proceed on the grounds of the Data Protection Act;
  • Physical persons (i.e. those who are not entrepreneurs) can be sanctioned as well. The provisions related to sanctions have been amended in general;
  • Providers of information society services obtained the right to defend by legal action legitimate interests of their own and of their customers.

These amendments reflect the changes to the Article 13 of the Directive 2002/58/EC by simultaneously taking into account the real-life experience.

Commercial communication – new definition - Article 2(f)

Commercial communication means any kind of communication, including adverts and solicitations to visit certain websites, intended for direct or indirect support of goods, services, or image of an entity owned by a person who is entrepreneur or exercises regulated activity.

Single links inviting to visit a certain website shall also be regarded as commercial communication in the light of these new legal provisions.

Sanctioning of physical persons - Article 10(a)

  1. A physical person commits an offence by circulating electronically in bulk or repeatedly commercial communications without the recipient´s consent.
  2. Offences under paragraph 1 can be fined up to CZK100,000.

Only the sender and not the one on whose behalf the communication was sent can be sanctioned (unless the Article 3 is not applied). Due to this fact the law was often circumvented by using physical persons as senders of commercial communications. Amount and repetitiveness, both are the factors to be taken into account in assessing the level of sanction.

Article 11 amended

  1. Legal person that in bulk or repeatedly circulates electronically commercial communications
    • Without the recipient´s consent;
    • Without declaring it clearly and distinctly as commercial communication;
    • Disguising or concealing the sender´s identity on whose behalf the communication took place;
    • Not providing a valid contact detail to which the recipients could send their request concerning termination of the communication;
    • Without enabling customers to grant or reject clearly, distinctly, and in an easy manner their consent with exploitation of their electronic coordinates by sending every single message.
    shall be fined up to CZK10,000,000.

This provision is meant in the first place as sanction that should be applied to communications made in huge quantities or repeatedly. The elements of amount and frequency come from the Office´s practice and from the foreign experience in prosecuting spam. More addresses in the “TO” field mean, apart from the breach of privacy principles, means, without any doubt, circulation in huge amount. Furthermore, automated sending of personalized messages in the course of an advertising campaign will too be classified as circulation of unsolicited commercial communication in huge amount. The element of amount will also be measured against the number of complaints lodged against one single subject within a certain period of time (typically covering a certain advertising campaign). The repetitiveness of circulation shall especially be seen in the practice of sending messages to subjects despite their objection.

Recipients of commercial communication must have the opportunity to cancel their registration free of charge. In case the sender does not response to the cancellation request, recipients can lodge a complaint with the Office. Worth of mentioning in this respect is the Article 11(1)(c) of the Act No. 480/2004 Coll. Stipulating that “who disguises or conceals the sender´s identity on whose behalf the communication takes place” runs a risk of being sanctioned. If circulating on the basis of a consent commercial communication from third parties to own clients, it is necessary not to declare as sender the one on whose behalf the message was sent but the real sender, i.e. the one who chose the addresses.

The Act No. 480/2004 Coll. was newly complemented by the Article 11a

The information society service provider whose commercial interests are damaged by breaching the obligations laid down in Article 7 has the right to claim judicial protection on behalf of its customers whose rights were damaged by this conduct. This is true without any prejudice to the customers´ right of seeking their legitimate claims before the court on their own.

 

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