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Poland: New consent for direct marketing required due to changes in the Telecommunications Law

On 25 December 2014 a new law on consumer protection will come into force in Poland that may complicate the rules for direct marketing in that country. One of the changes to be introduced under this new regulation is an amendment of the Telecommunications Law supplementing the current implementation of Directives 2002/65/EC, and 2002/58/EC with respect to direct marketing. The supplementation, however, seems to go further than the objective set out in the Directives.

Currently, automated calling systems can be used for the purposes of direct marketing only after obtaining the end user’s prior consent. In addition, sending unsolicited commercial information through electronic means (e.g. e-mail, SMS, MMS) is possible only after obtaining the prior consent of the consumer.

The amendment will broaden the prior consent requirement to also cover the use
of telecommunication terminal equipment (e.g. cell phones and fax machines) for  the purposes
of direct marketing and, at the same time, leaves the regulation of unsolicited commercial information intact.

The new regulation may cause doubts as to the number of separate consents one must obtain before direct marketing. It appears that the most reasonable interpretation would be that the amendment will result in an obligation to obtain an additional prior consent (apart from the consent for sending commercial information by electronic means) not only for direct marketing through automated calling systems (as currently), but for regular telemarketing as well.

The new regulation may also influence the manner in which each of the consent clauses should be formulated.