President of the Office of Electronic Communications imposed fines on Orange Polska S.A. for sending marketing SMS messages with
13 november 2018
President of the Office of Electronic Communications (President of UKE) finds that Orange Polska S.A. has used automated calling systems for direct marketing purposes without having the required consents of subscribers or end users. As determined in the course of the proceeding, a total of over 3.8 million SMS messages have been sent to customers in violation of the Telecommunications Act. Fines in the total amount of 9.1 million PLN have been imposed on Orange Polska S.A.
The proceeding was initiated by a complaint of an Orange Polska S.A. customer who received an unsolicited marketing information via an SMS message from Orange Polska S.A. In the course of the proceeding, it was established that 1 763 334 SMS messages were sent with the following content: "The new 500MB internet package for 5 PLN for 30 days is now available. In order to activate it, send an SMS saying NET5 to the number 260 (20gr) and surf more than before!” and 2 056 851 SMS messages with the following content: "Excellent news, for FREE you will know where your Relative is NOW. Send an SMS (0 PLN) saying CP to 60504. 14 days for free / Then 6,15 incl. VAT per week / Orange.pl". Art. 172 item 1 of the Telecommunications Act protects subscribers and end users from intrusion into their privacy through unsolicited communications. This provision prohibits the use of telecommunications terminal equipment and automated calling systems for direct marketing purposes, unless the subscriber or end user has previously expressed the consent to do so. Orange Polska S.A. did not demonstrate that it possessed established consents granted by its subscribers and end users to receive marketing messages using automated calling systems. Sending the above-mentioned SMS messages was therefore against the prohibition resulting from Article 172 of the Telecommunications Act, which has not been waived by the relevant consents of the persons to whom the SMS messages of a marketing nature were sent.
President of UKE, while assessing the scope of the infringement, took account of the fact that the breaches found have resulted directly in a decreased level of protection of privacy and of the privacy-related rights of subscribers and end users in their relations with telecommunications undertakings. At the same time, the scale of the practice was significant, as it covered a total of 3 820 185 telephone numbers of subscribers or end users.
Still, President of UKE positively assessed the actions taken by Orange Polska S.A. aimed at compensating the subscribers and end users for the unlawful distribution of the marketing SMS messages by granting them special bonuses (data packages). President of UKE took into consideration the efforts of Orange Polska S.A. to reach the recipients of the previously sent SMS messages, and in particular the fact that the information about the bonus was titled "Important information for Customers", to ensure its appropriate visibility on the Company's website. The described circumstance was taken into account and affected the amount of the imposed fine.
The decision is not final because Orange Polska S.A. may submit an appeal to the court.