Sending commercial information - unfair practices

Service Business

Sending commercial information is a real scourge of the modern world. In many countries, special regulations have been developed to protect network users against this phenomenon. In Poland, so far there is no specific law that would deal with this problem. And anti-spam regulation is scattered in various acts, from various areas of law.

Sending commercial information - introduction

The provision of art. 10 of the Act of 18 July 2002 on the provision of electronic services provides that it is forbidden to send unsolicited commercial information addressed to a designated recipient who is a natural person by means of electronic communication, in particular e-mail. 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.

On the other hand, the new wording of the Telecommunications Law provides that 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 previously consented to it. The purpose of this provision is to provide security measures for subscribers against interference with their privacy.

Therefore, entrepreneurs wishing to send their potential clients commercial information must ask for consent. As a large number of e-mails with "XYZ Request for Consent to Send a Commercial Offer" in the subject line end up in the bin, most traders have started to circumvent the ban by engaging in unfair practices. This article aims to provide examples of violations.

The concept of commercial information

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 specified in separate acts, excluding information enabling communication by means of electronic communication with a specific a person and information about goods and services that do not achieve the commercial effect desired by the entity commissioning its dissemination, in particular without remuneration or other benefits from producers, sellers and service providers;

The necessary elements of the content of each commercial information are provided in Art. 9 of the Act on the provision of electronic services:

1. Commercial information is clearly separated and marked in a way that does not raise any doubts that it is commercial information.

2. Commercial information includes:

  1. designation of the entity on whose request it is disseminated and its electronic addresses;
  2. a clear description of the forms of promotional activity, in particular price reductions, free benefits in cash or in kind and other benefits related to the promoted goods, service or image, as well as clearly defining the conditions necessary to take advantage of these benefits, if they are part of the offer;
  3. any information that may affect the determination of the parties' liability, in particular warnings and reservations.

Consent to send a commercial offer

First of all, consent to send a commercial offer cannot be implied. It must be clearly done. Importantly, it can be withdrawn at any time, in a simple and free of charge manner. This consent must be expressed separately from the consent to the processing of personal data and its form should show any activity on the part of the consumer, e.g. in the form of an e-mail message or by clicking on the appropriate link. It is also important to mark the scope of the consent and specify that it concerns a specific product or group of products and does not include other things offered by the entrepreneur.

Unfair practices in obtaining consent to send commercial information

  • Obtaining consent to send commercial information may also be made on the basis of a previously sent e-mail with a request for consent to its sending. Here, however, the border is very thin and it is easy to cross it. The content of such an e-mail cannot contain messages promoting a given product or service. Therefore, a message with a request for consent cannot bear the features of commercial information described in the above-mentioned provisions of the Act on Providing Services by Electronic Means. Often, entrepreneurs send requests for consent along with a commercial offer. The request for consent is only a small fraction of the entire message, while the remaining part provides commercial information within the meaning of the Act on Providing Services by Electronic Means.

  • The publication of an e-mail address, e.g. on a website, cannot be treated as consent, because there is no active activity of the recipient, as I wrote above.

  • The default selection of consent to the transmission of commercial information, e.g. when registering on the website of an online store, will also be treated as an act of unfair competition. Even if the user is able to deselect it, it forces him to act actively in order not to give his consent, and such a form is not provided for by Polish law.

  • The provisions of the online store regulations, in which the customer agrees to send commercial information by electronic means, are also considered illegal. Acceptance of the regulations is also the consent to receive commercial information from the entrepreneur. According to the above-mentioned regulations, the declaration of consent to receive commercial information should be separate from other declarations made by the client.

  • Proposing prizes, discounts, samples and other benefits for consenting to sending a commercial offer, e.g. by downloading the trial version of the application, we automatically consent to the transmission of commercial information.

  • Sending offers with "RE:", "A:" in the subject of the e-mail. In this way, the sender tries to make the addressee erroneously believe that the contact between them has already been established.

  • Using the e-mail databases of suppliers who have already obtained consent, because they are the ones responsible for sending spam.

  • Finally, it is necessary to mention a situation that often occurs in practice, consisting in adding to private e-mail messages by websites offering free e-mail accounts, the so-called stickers or footers, which constitute commercial information. The important thing is that the message comes from the account of the person who has no intention of sending such information. The entity sending the message by e-mail agrees to such practices by accepting the terms and conditions of the free e-mail account. However, there is still no consent to send commercial information to the recipient. The entity responsible in this case will be the service providing free e-mail, not the sender of the message.