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Zmiana zasad przesyłania informacji handlowych.

Zmiana zasad przesyłania informacji handlowych.

W dniu 16 listopada 2012 r. sejm przyjął ustawę o zmianie ustawy – prawo telekomunikacyjne oraz niektórych innych ustaw. Ustawa wprowadza głownie szereg istotnych zmian w prawie telekomunikacyjnym. Na mocy nowelizacji wprowadzono jednak również niezwykle istotną zmianę przepisu art 10 ust. 1 ustawy z dnia 18 lipca 2002 r. o świadczeniu usług drogą elektroniczną (dalej: u.ś.u.d.e.) dotyczącego przesyłania niezamówionych informacji handlowych. W moim przekonania zmiana przepisów ustawy o świadczeniu usług drogą elektroniczną będzie miała niezwykle istotne znaczenie dla działalności marketingowej.

Zgodnie z uprzednio obowiązującym przepisem art. 10 ust. 1 u.ś.u.d.e.:

„1. Zakazane jest przesyłanie niezamówionej informacji handlowej skierowanej do oznaczonego odbiorcy za pomocą środków komunikacji elektronicznej, w szczególności poczty elektronicznej.”

Powszechnie przyjmowano, iż na gruncie powyższego przepisu za oznaczonego odbiorcę należy rozumieć zarówno oznaczoną osobę fizyczną, jak również konkretną osobę prawną. W konsekwencji, na gruncie dotychczasowego przepisu zabronione było przykładowo przesyłanie pocztą elektroniczną niezamówionej informacji handlowej na ogólne, niepowiązane z konkretnym pracownikiem firmowe adresy poczty elektronicznej (np. biuro@nazwafirmy.pl).

Zgodnie natomiast z aktualnym brzmieniem art. 10 ust. 1 uśude:
„1. Zakazane jest przesyłanie niezamówionej informacji handlowej skierowanej do oznaczonego odbiorcy będącego osobą fizyczną za pomocą środków komunikacji elektronicznej, w szczególności poczty elektronicznej.”

A zatem, zgodnie z aktualnie obowiązującym przepisem niedozwolone jest wyłącznie przesyłanie niezamówionej informacji handlowej skierowanej do oznaczonej osoby fizycznej. Wskazać należy przede wszystkim, iż dokonana zmiana jest zgodna z postanowieniami Dyrektywy 2000/31/WE przewidującej jako minimalny poziom ochrony system opt – in odnoszący się do osób fizycznych (konsumentów).

W mojej ocenie, zastosowanie w praktyce znowelizowanego przepisu wzbudzać będzie szereg wątpliwości interpretacyjnych. Powstaje bowiem zasadnicze pytanie, jak rozumieć termin „oznaczona” osoba fizyczna.
Przykładowo, wątpliwości interpretacyjne wzbudza sytuacja, w której firma udostępnia np. na swojej stronie internetowej adresy typu office@nazwafirmy.pl lub marketing@nazwafirmy.pl jako ogólne adresy do korespondencji (nie przypisując ich do konkretnej osoby), jednak wewnątrz organizacji adres taki zostaje przypisany do konkretnego pracownika (np. firma ma jedna osobę w dziale marketingu, która posługuje się adresem marketing@nazwafirmy.pl). W mojej ocenie, w przypadku, gdy nadawca nie wie o tego rodzaju wewnątrzorganizacyjnym przypisaniu adresu poczty elektronicznej do konkretnego pracownika, przyjąć należałby, iż nie dochodzi do przesłania informacji do „oznaczonej” osoby fizycznej.

Zaznaczać również należy, iż każdorazowo dokonując oceny dopuszczalności przesyłania informacji handlowych środkami komunikacji elektronicznej należy brać również pod uwagę ograniczenia wynikające z innych przepisów prawa. W szczególności należy brać pod uwagę przepis art. 172 prawa telekomunikacyjnego wprowadzającym zakaz używania automatycznych systemów wywołujących dla celów marketingu bezpośredniego, bez uprzedniej zgody abonent lub użytkownik końcowego.

Aktualnie przygotowuję szerszy artykuł dotyczący zasad przesyłania informacji handlowej, który ukarze się w jednym z najbliższych numerów magazynu Online Marketing Polska.

Roman Bieda

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