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The Czech Data Protection Authority has imposed the highest fine ever for sending of unsolicited commercial communications

published on 27 November 2023 | reading time approx. 3 minutes

The Czech Data Protection Authority (“Czech DPA”) has fined the act of repeated sending unsolicited commercial communications favouring third parties and imposed the highest fine ever, i.e. the fine of CZK 7,700,000 (approximately 315,444 EUR). This administrative wrong was committed by a transport company which, since 2015, has been sending commercial communications and notices favouring third parties to the e-mail addresses of its customers without their prior consent.

However, commercial communications and notices may be only sent under the conditions defined in Act No. 480/2004 Sb., on Certain Information Society Services, as amended (hereinafter referred to as "Act No. 480/2004 Sb."), which is also sometimes referred to as the so-called Antispam Act.

Under Act No. 480/2004 Sb., commercial communications mean all forms of communication, including advertising and encouragement to visit websites if such communication is intended to directly or indirectly promote the goods and services or the image of the undertaking of a person who is an entrepreneur or carries out a regulated activity.

In this exemplary case, customers were contacted by e-mail. The company promoted various discounts and vouchers offered by third parties and sent these commercial communications without the prior consent of the recipients.

Since it did not offer its own products or services, it was not entitled to benefit from the so-called customer exemption, as mentioned by the Czech DPA in its commentary on this case published on its website.

Without prior consent, it is only possible to send commercial communications to electronic contacts that were obtained previously in connection with the sale of products or services, and it may be done for the purpose of offering their own similar products or services. In this case, the commercial communications were inserted directly in e-mail messages that confirmed the purchases. Thus, the recipients could not, in a way, refuse those commercial communications.

In addition, other legal requirements were not met either; such as the clear and unambiguous identification of such messages or the unambiguous identification of the entity favoured by the commercial communication, as required by Article 7(4) of Act No 480/2004 Sb.

This unprecedented amount of the fine imposed by the Czech DPA was justified by the exemplary nature of the administrative wrong. It was argued that this exemplary nature was given by the high number of the recipients (more than 40 million), the period when these commercial communications were sent and the salutation method.