According to Article 2 point 43 of the Telecommunications Law, a telecommunications terminal equipment is a telecommunications device intended for direct or indirect connection to network termination points, which includes, among others, a telephone. It is worth noting the use of the term subscriber or end user. Such phrasing indicates that regardless of whether the interlocutor is a natural person or a representative of a legal entity, consent is still required. In other words, no distinction has been made here, as is the case, for example, in the Act on Providing Services by Electronic Means (Article 10), where the term consent of the recipient who is a natural person is used.
Consequences
What could be the consequences of lacking provable consent from the recipient of direct marketing? According to the provisions of Article 209 paragraph 1 point 25 of the Telecommunications Law:
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Anyone who fails to fulfill the obligations to obtain consent from the subscriber or end user, as referred to in Articles 161, 166, 169, and 172–174, is subject to a financial penalty.
According to the provisions of Article 210 paragraph 1 of the Telecommunications Law:
„The financial penalty referred to in Article 209 paragraph 1 is imposed by the President of UKE, by way of a decision, in an amount of up to 3% of the revenue of the penalized entity, achieved in the previous calendar year. (…)”.
How to call legally?
To avoid negative consequences arising from the aforementioned legal provisions, it is necessary to obtain the consent of the recipient of direct marketing. Unfortunately, due to the use of the term: prior consent, it is not entirely clear when the aspect of prior consent should occur. Theoretically, there is a possibility of including additional content of the consent in the recorded conversation, similar to what happens when obtaining consent for recording a conversation. However, this could be perceived by the supervisory authority, namely the Office of Electronic Communications, as an attempt to circumvent the legal provisions, thus constituting a violation. We have addressed this concern to a representative of the legal department of UKE. We discuss the response in another article of ours Telecommunications Law – UKE Interpretation. In light of the above, the only certain solution is to obtain consent in other, still permissible contact situations with the potential client. In other words, it is necessary to modify or supplement the existing consent clauses with an additional one resulting from the aforementioned legal provisions:
I consent to receiving incoming telephone calls initiated by [insert entity name] for commercial and marketing purposes in accordance with Article 172 of the Telecommunications Law.
The above clause can be included on every occasion of contact with the client (to obtain as many legal bases for contact as possible), namely the sending of commercial information electronically, sending SMS messages, as well as all paper versions of contracts, as well as competitions, events, and other circumstances traditionally used for collecting commercial contacts (so-called leads).
Summary
In summary, the amended legal provisions have significantly restricted telemarketing. It is no longer possible to refer to “randomly selected phone numbers” or other actions aimed at telephone contact for commercial and marketing purposes without the prior consent of the individual or entity.
