What is spam? - legal regulations on spamming

Service Business

In the modern world, unspoken correspondence (spam) is a real scourge and is one of the manifestations of the so-called direct marketing. Such activity of entrepreneurs consists in providing clients with information about the possibility of purchasing goods and services or submitting an offer to conclude an agreement to potential contractors. Due to spam, Internet users have to make additional investments in filtering devices or spend their precious time deleting more and more new messages. Spamming can also be viewed as a violation of the right to privacy and even a source of cybercrime (identity theft). This article provides an overview of the most important legal regulations on spam, with the greatest attention being paid to the changes introduced by the Consumer Rights Act.

What is spam?

We associate spam primarily with unsolicited information sent via e-mail. However, please note that sent messages can also be considered spam:

  • from a mobile phone,
  • internet communicators,
  • blogs created to litter the results of search engines,
  • or the so-called pop-up windows, i.e. advertising windows that pop up on websites

The phenomenon of spamming that occurs in practice goes far beyond the definitions used in anti-spam regulations.

The most important legal acts concerning this issue are:

  • the Telecommunications Law
  • the act on the provision of electronic services
  • the Act on Combating Unfair Competition

Spam in the Telecommunications Law

The Act of May 30, 2014 on consumer rights amended the Telecommunications Act. The new wording of Art. 172 of the Act introduces the necessity to obtain the consent of the final recipient for sending unsolicited commercial information. In the previous legal state, there was a similar prohibition. In the act on the protection of certain consumer rights and liability for damage caused by a dangerous product, the use of a telephone, video-phone, facsimile, e-mail, automatic calling device or other means of electronic communication in order to submit a proposal to conclude a contract required the consumer's prior consent. The new regulation significantly extends this ban.

Article 172 of the Telecommunications Law

1.It is forbidden to use telecommunications terminal equipment and automatic calling systems for the purposes of direct marketing, unless the subscriber or end-user has given their prior consent.

2. The provision of para. 1 does not violate the prohibitions and restrictions on the transmission of unsolicited commercial information resulting from separate acts.

3. Using the means referred to in par. 1, for the purposes of direct marketing, may not be at the consumer's expense.

 

Sending unsolicited messages may involve the use of:

  1. telecommunications end devices (a telecommunications device intended to be connected directly or indirectly to network terminals, it will be e.g. telephone, fax, computer with access to the ICT network)
  2. automatic calling systems (devices for transmitting specific messages to individual recipients without human intervention, using devices connected to the telecommunications network, e.g. SMS, MMS message generators, voice communicators)

If the consumer incurs any costs in connection with the use of the above-mentioned measures, he will be able to seek their reimbursement.

The need to obtain prior consent to use the devices described above for direct marketing purposes concerns:

  1. subscribers (a party to a contract for the provision of telecommunications services with a provider of such services),
  2. end users (entities using a publicly available telecommunications service or requesting the provision of such a service to meet their own needs).

In the current legal state, the subjective scope of the prohibition is much wider. There is no restriction that has existed so far - the need to obtain prior consent no longer applies only to the consumer. Currently, this requirement also applies to the entrepreneur. In the case of legal persons (e.g. limited liability company, joint-stock company), consent should be granted in accordance with the rules of representation of that person, i.e. most often by members of the management board of a given organizational unit.

Spam in the act on the provision of electronic services

One cannot forget about Art. 10 of the Act on the provision of electronic services:

Art. 10. 1. It is forbidden to send unsolicited commercial information to a designated recipient who is a natural person by means of electronic communication, in particular e-mail.

2. Commercial information is considered to be ordered if the recipient has consented to receive such information, in particular, for this purpose he has made available an e-mail identifying him.

3. The action referred to in par. 1, constitutes an act of unfair competition within the meaning of the provisions of the Act referred to in Art. 9 sec. 3 point 1.

 

Pursuant to Art. 2 point 2 of the Act on the provision of electronic services:

commercial information is any information intended directly or indirectly to promote goods, services or the image of an entrepreneur or a person practicing a profession whose right to practice depends on meeting the requirements set out in separate acts, excluding information enabling communication by means of electronic communication with a specific person and information about goods and services that do not achieve the commercial effect desired by the entity that orders its dissemination, in particular without remuneration or other benefits from producers, sellers and service providers;

 

Spam in the light of the Act on Combating Unfair Competition:

Art. 16. 1. An act of unfair competition in the field of advertising is in particular:

5) advertising, which constitutes a significant interference in the sphere of privacy, in particular by inconvenient for customers in public places, sending unsolicited goods at the customer's expense or abuse of technical means of communication

Spam in other laws

Sending unsolicited commercial information may be treated as an infringement of personal rights. Liability for infringement of personal rights is governed by the provisions of the Civil Code (Articles 23 and 24). In turn, the Criminal Code provides for a number of crimes which are the basis of spamming. Spam may also violate the provisions of the Personal Data Protection Act. An e-mail address can be considered personal data when its components make it possible to identify its owner without excessive costs, time or effort.

End

As you can see, a large number of legal acts deal with the legal regulation of spam. In order for a message to be considered as ordered, the end recipient must consent to receiving it. Consent cannot be presumed and, moreover, it may be revoked at any time. Sending an e-mail to a potential contractor with a request for consent to sending commercial information may also be treated as spam. It should be remembered that spam is not only bothersome advertisements sent via e-mail, but also correspondence appearing on other communication platforms. Mass sending of unsolicited commercial information may have a number of negative consequences for senders.

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