Financial penalty imposed on PTC - UKE

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Financial penalty imposed on PTC


2011-08-03

The President of UKE has imposed a penalty of PLN 5 million on PTC for non-fulfilment of its obligation to obtain the PTC telecommunications network subscribers' or end users' consent to using automated calling systems for the purposes of direct marketing.

 

On 2 August 2011, the President of UKE imposed on Polska Telefonia Cyfrowa Sp. z o.o. with its registered office in Warsaw a financial penalty of PLN 5 million for:

  • breach of Article 172 (1) of the Telecommunications Act in connection with Article 174 point 1 of the Telecommunications Act caused by non-fulfilment of an obligation to obtain consent to using automated calling systems for the purposes of direct marketing in relation to 95 subscribers or end users of the PTC telecommunications network and by using those automated calling systems for the purposes of direct marketing. The subscribers or end users in question received SMS encouraging them to participate in a promotional lottery called "Have you become a millionaire today?", while the consents held by PTC were given not consistently with Article 174 point 1 of the Telecommunications Act.
  • breach of Article 172 (1) of the Telecommunications Act caused by non-fulfilment of an obligation to obtain consent to using automated calling systems for the purposes of direct marketing in relation to 1.711.294 subscribers or end users of the PTC telecommunications network and by using those automated calling systems for the purposes of direct marketing. The subscribers or end users in question received SMS or IVR voice messages encouraging them to participate in a promotional lottery called "Have you become a millionaire today?".

The provision of Article 172 (1) of the Telecommunications Act forbids the use of automated calling systems for direct marketing, unless a subscriber or an end user has given prior consent to do so. A consent given by a subscriber or an end user as required under the law must meet the requirements specified in Article 174 of the Telecommunications Act, i.e. the consent:

1) may not be presumed or implied by a declaration of will of a different content;
2) may be expressed by electronic means, provided that it is recorded and confirmed by the user;
3) may be cancelled at any time, in a simple manner and free of charge.

The ban on using automated calling systems for the purposes of direct marketing as stated in Article 172 (1) of the Telecommunications Act implements the provision of Article 13 (1) of the Directive 2002/58/EC of the European Parliament and of the Council of 12 July 2002 concerning the processing of personal data and the protection of privacy in the electronic communications sector (in its wording following the entry into force on 19 December 2010 of the Directive 2009/136/EC of 25 November 2009).

As a result of administrative proceedings, the President of UKE analysed 145 cases in which automated calling systems were used and involved addressing the subscribers or end users of the PTC telecommunications network with:

  • SMS or
  • IVR messages (Interactive Voice Response - a telecommunications system supporting interactive handling of callers),

encouraging them to participate in a promotional lottery called "Have you become a millionaire today?".

The proceedings have shown that out of 145 cases under investigation PTC failed to fulfil its obligation to obtain consent to using automated calling systems for the purposes of direct marketing in the case of 95 subscribers or end users. In 95 cases under investigation the subscribers or end users received SMS encouraging them to participate in a promotional lottery called "Have you become a millionaire today?", while the consents held by PTC were given inconsistently with Article 174 point 1 of the Telecommunications Act.

Concurrently, during the administrative proceedings the President of UKE found that PTC, by sending SMS or voice messages encouraging  participation in a promotional lottery called "Have you become a millionaire today?" in total to 1.711.294 subscribers or end users, failed to fulfil its obligation to obtain the subscribers' or end users' consent as specified under Article 172 (1) of the Telecommunications Act. The company treated the absence of the subscribers' or end users' objection to receiving commercial information as their consent to using automated calling systems for the purposes of direct marketing within the meaning of Article 172 (1) of the Telecommunications Act, which constitutes an example of "implied consent". Under Article 174 point 1 of the Telecommunications Act the consent in question "may not be presumed or implied by a declaration of will of a different content".

The President of UKE while imposing a financial penalty on PTC took account of the fact that the breaches found have resulted directly in decreased level of protection with regard to the subscribers' and end users' rights governing their relations with telecommunications undertakings. The activities of PTC consisting in the usage of automated calling systems without the subscribers' or end users' prior consent caused intervention in their privacy by forcing them to receive unsolicited messages for the purposes of direct marketing with regard to the lottery in question. It is impossible to evaluate the extent to which the messages caused nuisance to their recipients. Moreover, it is hard to neglect the fact that more far-reaching consequences of sending the above messages involved in some cases unintended participation in the lottery and incurring significant costs due to this fact. The situation that emerged in consequence of the breaches found should be evaluated as a significant breach of the subscribers' and end users' rights, given that it affected as many as 1.711.389 subscribers or end users.

In such situations the Telecommunications Act provides for the issuance of a decision imposing a financial penalty of up to 3 per cent of the undertaking's annual revenue as a maximum amount.

The President of UKE would like to stress that the amount of the penalty takes account of the fact that the company had been fined before for breaches of information obligations towards end users.

The attached file contains the list of penalties imposed on PTC, P4 and PTK for particular breaches.

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    The President of the Office of Electronic Communications (President of UKE) is the national regulatory authority for the market of telecommunications and postal services. The President of UKE is also the specialised authority in the area of equipment conformity assessment, including telecommunications terminal equipment and radio equipment.

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