PolandPrawo komunikacji elektronicznej, Prior Consent for Commercial Information and Direct Marketing
Prawo komunikacji elektronicznej art. 398 ust. 1-4 art. 444 ust. 1 pkt 81, art. 446 ust. 5 i art. 448 (ustawa z dnia 12 lipca 2024 r., Dz.U. 2024 poz. 1221)
In force since .
A commercial messages rule binding public and private bodies.
- Obligation class
- Consent, Prohibition
As of .
What it requires
- Get the subscriber's or end user's prior consent before using an automatic calling system or telecommunications terminal equipment, in particular in the use of interpersonal communications services, to send commercial information, including direct marketing.
- Get the same prior consent before sending commercial information by any means of electronic communication to a subscriber or end user.
- Treat as commercial information any information meant directly or indirectly to promote the goods, services or image of an entrepreneur or of a person in a regulated profession.
- Consent can take the form of the recipient providing the electronic address that identifies them for the purpose of receiving commercial information at that address.
- Do not make the end user or subscriber bear the cost of the commercial information or direct marketing you send by these means.
If you get it wrong
Criminal exposureYes
Criminal exposure note
Sending commercial information by means of electronic communication without the prior consent of the subscriber or end user is a petty offence (wykroczenie, article 448) punishable by a fine (grzywna) and prosecuted at the injured party's request.
Penalty structure
Article 446(5): up to 3 percent of the entity's revenue (przychód) in the previous calendar year or up to 1,000,000 zloty, whichever is higher. The reduced limits of article 446(2), (3) and (7) do not apply to this fine.
- Rule
- Higher of
- As of
- Currency
- PLN
- Fixed cap
- 1,000,000
- Turnover percentage cap
- 3
Who enforces it
Enforcement body
President of the Office of Electronic Communications (Prezes UKE), who imposes the administrative fine by decision (articles 444 and 446).
What this law does
Article 398(1) bans using automatic calling systems and telecommunications terminal equipment, in particular in the use of interpersonal communications services, to send commercial information, including direct marketing, to a subscriber or end user who has not consented in advance.
Commercial information is information meant directly or indirectly to promote the goods, services or image of an entrepreneur or of a person in a regulated profession, as the Act on the Provision of Services by Electronic Means defines it. A subscriber is a user who is party to a contract for electronic communications services with a provider of such services. An end user is an entity that uses a publicly available electronic communications service, or asks for one, to meet its own needs.
A recipient may give the consent by providing the electronic address that identifies them, for the purpose of receiving commercial information at that address. Using these means to send commercial information, including direct marketing, may not be at the cost of the end user or subscriber. Article 398(4) makes the act an act of unfair competition under the Act on Combating Unfair Competition.
Article 444(1) point 81 subjects a person who uses automatic calling systems or terminal equipment to send commercial information without the subscriber's or end user's prior consent to an administrative fine. For breach of article 398 the President of UKE imposes by decision a fine of up to 3 percent of the entity's revenue in the previous calendar year or up to 1,000,000 zloty, whichever is higher.
Article 448 separately makes it a petty offence (wykroczenie), punishable by a fine and prosecuted at the injured party's request, to send commercial information by means of electronic communication without the prior consent of the subscriber or end user.
When LexLint raises it
When your app profile says your app sends automated outreach.