After a proceeding lasting two years, the Office of Competition and Consumer Protection (UOKiK) issued a decision on 30 May 2019 in the case of the Polish telecom Netia concerning the method of collecting marketing consents, and the wording of the consents, obtained for Netia by its business partners. UOKiK found that a substantial showing was made that Netia’s practice of making telephone calls to consumers who were not Netia subscribers, and had not given prior consent to contacts by telephone, violated the collective interests of consumers.

In this case, Netia had sent marketing communications to persons who at the time they provided consent to direct marketing had not been informed that they were granting consent specifically to Netia. Such consent was given via third parties on various websites, e.g. when entering contests, signing up for free language courses, or participating in telephone market research. In the wording of the consent, consumers were not informed of the specific third parties to whom they were granting consent, but were rather given general references (e.g. to “companies from the telecommunications services sector”). The third parties collecting such consent, in turn, had concluded contracts with Netia to provide Netia with access to their databases.

Then staff of Netia’s internal teams, as well as external teams (call centres), called the numbers obtained in this manner and during the conversation, often after informing the consumer for example of a new internet access offer from Netia, obtained the consumer’s consent to contact by telephone in order to present the offer. The databases provided to Netia by these business partners did not include the content of the consent provided by the consumers.

Consumers must know what they are consenting to

UOKiK found that the consent given by the consumers to Netia’s partners did not contain consent to direct marketing by Netia. The office emphasised that if an undertaking collects consent through its partners, such consent cannot be general but must clearly indicate the purpose for which the consent is collected and for which entity. UOKiK also pointed out that an entity employing direct marketing is responsible for the correctness of the marketing consents regardless of whether it obtained them itself or outsourced the collection of consent to third parties.

Along the way, UOKiK explained that direct marketing includes not only sales activity, but all actions serving to deliver information to the consumer (in other words, also advertising and market research), so long as the aim of such actions is to promote the services and the intended effect is to increase the target’s interest in the undertaking’s products.

In the view of UOKiK, direct marketing includes telephone contacts “with a request for consent,” as well as contacts “aimed at studying the consumer’s needs and expectations with respect to the goods or services offered by the undertaking,” informing the consumer of promotional campaigns, and contacts concerning announcements of upcoming offers. If the consumer did not previously consent to direct marketing, such action is contrary to the Telecommunications Law and the Competition and Consumer Protection Act.

Undoubtedly this decision by UOKiK is of huge importance for all entities involved in intermediation in obtaining consent to direct marketing via telephone and email. They must examine the transparency of the consents they collect and indicate the ultimate beneficiary of the consent, record the content of the consent in the resulting databases, and also formulate the obligations of partners collecting consent to ensure that their actions comply with the Telecommunications Law, the General Data Protection Regulation, and the Electronic Services Act.

Katarzyna Szczudlik