Traders are often interested in the legal aspects of sending advertising emails or SMS messages to their former customers or other registered users. Important information for practice is logically particularly which cases of sending commercial communications are in accordance with legal regulations and which are not. Unauthorised sent commercial communications are usually referred to as spam and may potentially endanger the trader’s good reputation.

A more comprehensive legal regulation of sending commercial communications is contained in the Act on Certain Information Society Services (Act No. 480/2004 Coll., as amended). This Act, in its provision of Section 2(f), also defines what constitutes a commercial communication. A commercial communication means all forms of communication designed for direct or indirect promotion of goods or services or the image of an undertaking of a natural or legal person. The definition of commercial communication is therefore relatively broad and applies to all offers of products and services.

In general, it is advisable to include the customer’s consent to the sending of commercial communications in the text of the trader’s terms and conditions or in the registration form on his website (also with regard to the obligations arising from the Act on the Protection of Personal Data). Provision of Section 53(2) of the Civil Code states that “only with the prior express consent of the consumer may automated telephone systems without (human) operation, fax machines and automated sending of electronic mail be used.” This matter is similarly regulated in the provision of Section 7(2) of the Act on Certain Information Society Services: “Details of electronic contact may be used for the purpose of disseminating commercial communications by electronic means only in relation to users who have given prior consent thereto.”

Without the prior consent of the customer, commercial communications may be sent only under the conditions stipulated in Section 7(3) of the Act on Certain Information Society Services: “…where a natural or legal person obtains from its customer details of his electronic contact for electronic mail in connection with the sale of a product or service in accordance with the requirements for the protection of personal data regulated by a special legal regulation, that natural or legal person may use those details of electronic contact for the purposes of disseminating commercial communications concerning its own similar products or services, provided that the customer has a clear and conspicuous possibility of refusing consent to such use of his electronic contact in a simple manner, free of charge or at the expense of that natural or legal person, including when each individual message is sent, if he did not originally refuse such use.” The contact for electronic mail must therefore be obtained in accordance with the Act on the Protection of Personal Data.

Finally, it is also appropriate to recall the obligation arising from the provision of Section 7(4)(a) of the Act on Certain Information Society Services, namely that “the sending of electronic mail for the purpose of disseminating commercial communications is prohibited if it is not clearly and conspicuously marked as a commercial communication…” This obligation applies to all cases of sending commercial communications. Compliance with other obligations arising from the provision of Section 7(4) of the Act on Certain Information Society Services should not cause traders any difficulties in practice.

This text was translated from Czech to English using an AI translator.