On 18 October 2021, an amendment to Act No. 127/2005 Coll., on Electronic Communications and on Amendments to Certain Related Acts (the Electronic Communications Act), as amended (hereinafter the “Electronic Communications Act”), was published in the Collection of Laws.
Current legislation on telemarketing
Telemarketing legislation refers to a public list of participants, such as telephone directories, in which anyone can be included. It is now possible for anyone on the public list to request that their contact details state that they do not wish to be contacted for marketing purposes. The current arrangements therefore operate on an opt-out basis.
Legal regulation of telemarketing after the amendment to the Electronic Communications Act
With effect from 1 January 2022, there will be a change in the regulation of telemarketing to the opt-in principle. This change in telemarketing has been adopted in response to the relatively widespread practice of cold calls targeting both businesses and consumers.
Anyone on the public list will now be able to request that their contact details state that they wish to be contacted for marketing purposes. Therefore, only those persons who are listed and have explicitly indicated that they wish to be contacted for marketing purposes will be able to be contacted for marketing purposes.
The legislation does not differentiate whether the parties contacted for marketing purposes are businesses or consumers, so it will apply equally to legal persons, enterprising individuals and to natural persons.
List of participants and possible interpretative problems
Section 95 (5) of the Electronic Communications Act now explicitly states that the creation of the public list of participants is also considered to be the random generation of telephone numbers, so the public list is any list of telephone numbers of persons. It follows from this provision that it is never possible to contact persons using randomly generated numbers for marketing purposes, since in this case prior consent to contact cannot be given.
One of the possible risks of interpretation is that the second sentence of Section 95 (5) of the Electronic Communications Act, which provides that the list of participants is also a list of telephone numbers without other identifying data or a list containing telephone numbers or personal or identifying data of participants who have not indicated that they wish to be contacted for marketing purposes, will be interpreted as meaning that the list of participants is also a list of telephone numbers of customers and that it will not be possible to contact them without their prior consent. However, within the meaning of Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation) (hereinafter the “GDPR”), this would be a legitimate interest on grounds of legitimate expectation and prior consent would therefore not be required in this case.
Another of the interpretation risk is that the new regulation on telemarketing will be interpreted as prohibiting contacting customers also by means of a list of their e-mail addresses without their prior consent, since Section 95 (3) of the Electronic Communications Act also lists e-mail addresses as personal data of participants to the public list. This interpretation would, however, be contrary to the principle of conformity with EU law, since Section 7 (3) of Act No 480/2004 Coll. on Certain Information Society Services and on the Amendment of Certain Acts (Act on Certain Information Society Services) states that if a natural or legal person obtains an e-mail address from its customer in connection with the sale of a product or service, that person may use that address for the purposes of disseminating commercial communications relating to its own similar products or services, provided that the customer has a clear and distinct opportunity to refuse consent in a simple manner. This provision is based on 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 (Directive on privacy and electronic communications), any stricter regime would therefore be contrary to the Directive.
Other pitfalls of the amendment
The new legislation will simply be enforceable only against entities operating in the Czech Republic, but many marketing calls may be made from entities abroad (both from the European Union and from third countries). The prosecution of offences will be the responsibility of the Czech Telecommunication Office, so any prosecution of foreign callers will also be at the discretion of the Office.
Experts consider the text of the amendment to the Electronic Communications Act to be inconsistent and difficult to interpret. At the same time, it is pointed out that no Regulatory Impact Assessment (RIA) has been carried out on the part of the amendment that essentially prohibits telemarketing, which is contrary to the legislative rules.
With effect from 1 January 2022, the amendment to the Electronic Communications Act will bring significant restrictions on telemarketing, whereby the opt-out principle will be replaced by an opt-in principle, and it will be possible to market only to those persons who are listed in the public list of participants and have explicitly indicated that they wish to be contacted for marketing purposes. After the amendment enters into force, it is likely that the above-mentioned potential interpretative problems of the amendment will be clarified by the activities of the Czech Telecommunication Office.
If you have any questions regarding this issue or current legislation, please do not hesitate to contact us.
Mgr. Jakub Málek, partner – email@example.com
Kateřina Roučková, legal assistant – firstname.lastname@example.org
11. 11. 2021