Czech Republic: Amendment to Electronic Communications Act Strengthens Consumer Protection in Line with European Union Standards

czech-republic:-amendment-to-electronic-communications-act-strengthens-consumer-protection-in-line-with-european-union-standards

On September 15, 2021, the Chamber of Deputies (lower house) of the Parliament of the Czech Republic adopted an amendment to the Electronic Communications Act (Zákon 127/2005 Sb.). As stated in the explanatory memorandum to the amendment, the amendment strengthens consumer protection and incorporates the European Union (EU) rules on privacy in electronic communications into the Czech legal system. Notably, the amendment changes the approach to using cookies in the Czech Republic and similar tracking technologies and introduces stricter rules for telemarketing calls.

The amendment introduces an opt-in cookie model requiring the user’s prior consent to the use of cookies. Cookies and other technologies must not be used without the user’s permission, except when they are necessary for a website’s functioning or have been explicitly requested by the user. Consent will no longer be required for cookies needed for adding items to a shopping cart and completing an ordering process.

The opt-in model replaces the currently used opt-out model. Under current rules, website operators can access a user’s device until the user opts out, and the user’s passivity means acceptance of the use of cookies.

The amendment transposes EU rules on privacy in electronic communications covered in several EU legal acts and is in line with the EU’s proposed Regulation on Privacy and Electronic Communications that is currently under discussion. If adopted, the regulation will replace the EU’s ePrivacy Directive 2002/58/EC, which requires in article 5, paragraph 3 that the consent of users be obtained before information (cookies) is stored on their computers or devices, or before access to that information is obtained. Furthermore, the Court of Justice of the European Union stated in Case C-673/17 that the use of pre-ticked boxes was an invalid way to obtain consent under the General Data Protection Regulation (GDPR) because the GDPR expressly requires active consent.

The current Czech Electronic Communications Act states in its section 89(3) that anyone who uses electronic communications networks to store data or to gain access to data of subscribers or users must inform them in advance in a demonstrable manner of the scope and purpose of the processing and offer them the opportunity to refuse such processing. This provision thus does not require the user’s active consent to cookies but only the opt-out option. Therefore, this provision is not in compliance with the EU standard set up by the case law.

The new amendment rephrases the old provision and establishes that instead of the opportunity to refuse, users will give active consent to cookies. The explanatory memorandum to the amendment states that the opt-in model existed even before the GDPR and that the GDPR supported it.

The opt-in model introduced by the amendment also covers telemarketing calls. The new rule will automatically assume that phone users do not want marketing calls. Companies may contact only those who have given their consent to their electronic communications service provider, most often their mobile operator.

According to Lukáš Zelený, a member of the board of the Czech Telecommunication Office, the amendment will provide for a fairer business environment by ensuring more effective punishment for possible violations of the law and by strengthening the position of Czech consumers and of companies that do not currently abuse the system and are thus put at a disadvantage by those engaging in unscrupulous practices.

The Czech Senate rejected the proposal for the amendment in July 2021. Notably, the Senate rejected the rule regarding telemarketing. However, the Chamber of Deputies overrode the Senate by a vote of 137–5, thereby adopting the proposal. According to the Czech Constitution, if the Senate rejects a bill or returns it with amendments, the bill may be debated again in the Chamber of Deputies, and the Chamber of Deputies must vote again on the proposal without making any amendments to the bill. If a majority of the members of the Chamber vote in favor of the proposal, the Senate’s negative decision is overridden and the proposal is adopted.

The act will enter into force on January 1, 2022.

Prepared by Adela Balima, Law Library extern, under the supervision of Peter Roudik, Assistant Law Librarian of Congress