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Czech Republic: New Opinions on Cookies and Telemarketing

New Opinions on Cookies and Telemarketing

Czech Republic
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In the run-up to Christmas, two interesting opinions were issued by public authorities that address some controversial matters frequently encountered in practice regarding cookies and telemarketing.

On 22 December 2021, the Office for Personal Data Protection issued an opinion in the form of a reply to questions raised about the new legislation on cookies under the amended provision of Sec. 89 (3) of the Act on Electronic Communications (the "Act"). Under the amended provision, a user's consent is required to store data or to gain access to data stored on the user's equipment (with the exception of so-called "strictly necessary cookies").

Key points:

  • Withdrawing/refusing consent should be as easy as giving it. So, merely giving users the option to accept or to manage cookies is insufficient. A third option – "reject all (except strictly necessary cookies)" – is also necessary.
  • Storage and access to cookies under Sec. 89(3) of the Act must be differentiated from the processing of data obtained through these cookies. Such processing is governed by the GDPR and, theoretically, there might be other legal reasons for the data processing (e.g. legitimate interest of a data controller). Even in these cases, however, it is necessary to obtain users' consent to store cookies on their devices, and without such consent further processing is banned.
  • Pre-ticked consents are not allowed, not even for analytical cookies.
  • After having refused to give consent to storing or processing of cookies, the user cannot be prevented from visiting the relevant website.

The new legal regulation on telemarking was also clarified thanks to a joint opinion of the Ministry of Industry and Trade, the Czech Telecommunications Office and the Office for Personal Data Protection, issued on 21 December 2021. The opinion, also in the form of a reply to questions, addressed the amended sections 66, 95 and 96 of the Act on Electronic Communications. Under these new provisions, telemarketers may only use information available in public telephone directories if the users have indicated in the directory that they wish to be contacted for marketing purposes (this is contrary to the previously used "opt-out" principle). 

Key points:

  • These provisions apply only to telemarketing carried out using information available in a public telephone directory. The new legislation does not affect the contacting of customers in accordance with Section 7 of Act No. 480/2004 Coll. on Certain Information Society Services or customers and users who have given their explicit consent.
  • This legislation does not apply to information published directly by the user, e.g. contact details on company websites. For this information the GDPR or Act No. 480/2004 Coll. applies.

Even a call to obtain a user's consent to telemarketing is considered telemarketing.

By Michal Matejka, Partner, PRK Partners

PRK Partners at a Glance

PRK Partners, one of the leading Central European law firms, has been helping clients achieve their business objectives almost 30 years. Our team of lawyers, based in our Prague, Ostrava, and Bratislava offices, has a unique knowledge of Czech and Slovak law and of the business environment. Our lawyers studied at top law schools in the United States, United Kingdom, Switzerland and elsewhere. They also have experience working for leading international and domestic law firms in a number of jurisdictions. We speak your language, too. Our legal team is fluent in more than 15 languages, including all the key languages of the region.

PRK Partners has one of the most experienced legal teams on the market. We are consistently rated as one of the leading law firms in the region. We have received many significant honours and awards for our work. We represent the interests of international clients operating in the Czech Republic in an efficient way, combining local knowledge with an understanding of their global requirements in a business-friendly approach. We are one of the largest law firms in the Czech Republic and Slovakia. Our specialised teams of lawyers and tax advisors advise major global corporations as well as local companies. We provide comprehensive legal advice drawing on our profound knowledge of local law and markets.

Our legal advice delivers tangible results – as proven by our strong track record. We are the only Czech member firm of Lex Mundi, the world's leading network of independent law firms. As one of the leading law firms in the region, we have received many national and international awards, in some cases several years in a row. Honours include the Chambers Europe Award for Excellence, The Lawyer and Czech and Slovak Law Firm of the Year. Thanks to our close cooperation with leading international law firms and strong local players, we can serve clients in multiple jurisdictions around the globe. Our strong network means that we can meet your needs, wherever you do business.

PRK Partners has been repeatedly voted among the most socially responsible firms in the category of small and mid-sized firms and was awarded the bronze certificate at the annual TOP Responsible Firm of the Year Awards.

Our work is not only “business”: we have participated on a longstanding basis in a wide variety of pro bono projects and supported our partners from the non-profit sector (Kaplicky Centre Endowment Fund, Tereza Maxová Foundation, Czech Donors Forum, etc.).

Firm's website: www.prkpartners.com