PolandPrawo komunikacji elektronicznej, Consent for Storing or Accessing Information on a User's Device
Prawo komunikacji elektronicznej art. 399 ust. 1-4 art. 444 ust. 1 pkt 82 i ust. 2 pkt 8, art. 446 ust. 1-3 (ustawa z dnia 12 lipca 2024 r., Dz.U. 2024 poz. 1221)
In force since .
A device storage and tracking consent rule binding public and private bodies.
- Obligation class
- Consent, Disclosure
As of .
What it requires
- Before storing information on, or reading information already stored on, a subscriber's or end user's telecommunications terminal equipment, tell them clearly, unambiguously and understandably the purpose of the storage or access and that they can set its conditions through the settings of the software on their device or the configuration of the service, and obtain their consent after they have received that information.
- Make sure the stored information, or your access to it, causes no configuration change in the user's terminal equipment or the software installed on it.
- Consent may be given through the settings of the software installed on the user's terminal equipment or the configuration of the service.
- You need not meet these conditions where the storage or access is necessary to carry out the transmission of an electronic message over a public telecommunications network, or to provide a telecommunications service or a service provided by electronic means that the subscriber or end user requested.
- If you provide telecommunications services or services by electronic means and install software on the user's terminal equipment for use of those services, tell the user directly before installation, clearly and understandably, the purpose of the software, how you use it and how to remove it, and obtain their consent to its installation and use before you install it.
If you get it wrong
Penalty structure
Article 446(1): up to 3 percent of the entity's revenue (przychód) in the previous calendar year. Article 446(2) and (3): where that revenue was nil or no more than 500,000 zloty the fine is based on the average revenue of the three preceding calendar years, and where that period also shows no revenue or revenue of no more than 500,000 zloty the fine may not exceed 15,000 zloty.
- Rule
- Turnover pct only
- As of
- 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 399(1) allows storing information on, or gaining access to information already stored on, a subscriber's or end user's telecommunications terminal equipment only on the condition that the person is first informed, clearly, unambiguously and understandably, of the purpose of the storage or access and of the possibility of setting its conditions through the software settings or the configuration of the service.
The person must also consent after receiving that information, and the stored information or the access must not cause configuration changes in the terminal equipment or the software installed on it. The person may give that consent through the settings of the software installed on the terminal equipment or the configuration of the service.
The conditions do not apply where the storage or access is necessary to carry out the transmission of an electronic message over a public telecommunications network or to provide a telecommunications service or a service provided by electronic means that the subscriber or end user requested.
A provider of telecommunications services or services by electronic means may install software on the terminal equipment for use of those services only if the user is told directly beforehand, clearly and understandably, the purpose of the software, how the provider uses it and how to remove it, and consents to its installation and use.
Article 444(1) point 82 subjects a person who stores or accesses information on a user's terminal equipment, or installs software on it, contrary to article 399 to an administrative fine. Article 444(2) point 8 also lists a failure to meet the consent obligations of article 399 among the breaches for which the President of UKE may impose a fine where the character or scope of the breach warrants it.
The President of UKE imposes that fine by decision at up to 3 percent of the entity's revenue in the previous calendar year. Where the entity's revenue in the previous calendar year was nil or no more than 500,000 zloty, the fine is based on its average revenue over the three preceding calendar years, and where that period also shows no revenue or revenue of no more than 500,000 zloty the fine may not exceed 15,000 zloty.
When LexLint raises it
When your app profile says your app tracks devices.