Telemarketing

As far as telemarketing is concerned, there is a question relating to the possibility of telemarketing aimed at a company's own clients. Some authors have claimed that the amendment does not provide an exception, so companies must obtain prior consent even from their existing clients. Therefore, the Office for Personal Data Protection ('UOOU') issued an Interpretative Opinion stating that the opt-in regime for telemarketing applies only to calls in which there is no relationship between the parties. As a result, companies can contact their clients by telephone without prior consent if they have another valid legal basis for processing their data.

Another source of uncertainty was the content of telephone communications requiring prior consent, i.e. a definition of marketing advertising. Does it cover an offer of a meeting with a possibility of presenting the goods or services? What about an offer of free goods and services, such as free entrance to a gym? Is a call aiming to obtain the consents a marketing communication? The respective legislation does not answer these questions, but the answers are nevertheless crucial for day-to-day business. According to the UOOU, all of the above situations come under the definition of marketing communication. However, some experts question whether it is really necessary to regard every call to set up a business meeting as telemarketing. They believe that the specific circumstances in which a telephone number was obtained should be considered.

Cookies

Apart from telemarketing, the regulation of cookies has also led to some questions. The UOOU created a new FAQ section on its official webpage based on frequently asked questions received from businesses. Cookies and similar technologies are allowed without consent, but one should keep in mind that this also has its limits. Some cookies process personal data as well, and thus, any further processing must comply with the GDPR.

Moreover, the way of informing users about cookies when obtaining their consent requires clarity and readability. Therefore, the UOOU recommends keeping the 'Refuse all' option as clear and visible as the 'Accept all' option. The 'Refuse all' button should not be hidden in a second layer of information. The visuals and colours of buttons should enable anyone to choose freely whether they accept cookies or not. We suggest not keeping the 'Accept all' button significantly larger, brighter or more colourful. Otherwise, the 'Reject all' button may seem less visible and recognisable, and thus it might be overlooked easily. The consent would not then be seen as freely given. In addition, the option to recall consent at a later stage should be easy to manage, ideally via a button or link. In no circumstances is closing a cookies pop-up banner considered as consent, although the person remains on the page.

Conclusion

In many EU countries, the authorities have already begun enforcing the law and imposing fines on individuals and companies that breach the law. In the Czech Republic, the UOOU announced cookies as a priority in the private sector for 2022. The UOOU intends to start inspections in April 2022, the main criteria for subjects of the inspection being website traffic.

Notably, balancing data and consumer protection with an efficient and competitive business market might seem to be a difficult task, which it certainly is, but recent changes indicate that marketing and cookies are moving in a better, safer, and more user-friendly direction.

Tomáš Matějovský Partner
[email protected]
Daniel Szpyrc Associate
[email protected]
Jakub Kabát Associate
[email protected]
CMS Cameron McKenna Nabarro Olswang, advokáti, v.o.s., Prague