Data Protected - Czech Republic
Last updated February 2024
General | Data Protection Laws
National Legislation
National Supervisory Authority
Scope of Application
Personal Data
Sensitive Personal Data
Data Protection Officers
Accountability and Privacy Impact Assessments
Rights of Data Subjects
Security
Transfer of Personal Data to Third Countries
Enforcement
ePrivacy | Marketing and cookies
National Legislation
Cookies
Marketing by E-mail
Marketing by Telephone
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General | Data Protection Laws
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National Legislation
General data protection laws
The General Data Protection Regulation (EU) (2016/679) (“GDPR”).
The Data Processing Act implementing the GDPR was introduced as Act. No. 110/2019 Coll. (the “DPA”). The DPA completely replaced Act No. 101/2000 Coll., on Personal Data Protection.
In the areas of law not regulated by the GDPR, the Czech Republic will be subject to the DPA.
Entry into force
The GDPR has applied since 25 May 2018.
The DPA entered into force on 24 April 2019.
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National Supervisory Authority
Details of the competent national supervisory authority
The Office for Personal Data Protection will continue to act as the supervisory authority in the Czech Republic.
Office for Personal Data Protection (Úřad pro ochranu osobních údajů) (the “Office”)
Pplk. Sochora 27,
170 00, Prague 7
Czech Republic
As of 1 November 2023, the Office has transferred its website to the unified governmental domain. The current website is available at https://uoou.gov.cz/. The old website and its content is available at https://old.uoou.cz/.
Petr Jäger, the Vice-Chairman of the Office, represents the Czech Republic on the European Data Protection Board.
Notification or registration scheme and timing
There is no obligation to notify regulators of any processing under the GDPR. However, controllers and processors must keep a record of their processing and make it available to their supervisory authority on request (subject to limited exemptions).
Exemptions to notification
Not applicable.
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Scope of Application
What is the territorial scope of application?
The GDPR applies to the processing of personal data in the context of the establishment of a controller or processor in the EU.
It also contains express extra-territorial provisions and will apply to controllers or processors based outside the EU that: (i) offer goods or services to individuals in the EU; or (ii) monitor individuals within the EU. Controllers and processors caught by these provisions will need to appoint a representative in the EU, subject to certain limited exemptions.
The European Data Protection Board has issued Guidelines on the territorial scope of the GDPR (3/2018).
Is there a concept of a controller and processor?
Yes. The GDPR contains the concept of a controller, who determines the purpose and means of processing, and a processor, who just processes personal data on behalf of the controller.
The European Data Protection Board has issued Guidelines on the concepts of controller and processor in the GDPR (7/2020).
Both controllers and processors are subject to the rules in the GDPR, but the obligations placed on processors are more limited.
Are both manual and electronic records subject to data protection legislation?
Yes. The GDPR applies to both electronic records and structured hard copy records.
Are there any national derogations?
The GDPR does not apply to law enforcement activities which are instead subject to the Law Enforcement Directive. The GDPR also does not apply to areas of law that are outside the scope of Union law, such as national security, and does not apply to purely personal or household activity.
The DPA contains a number of additional national derogations, including for journalism, academic, artistic or literary speech and prevention, criminal investigation or exposure of crime.
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Personal Data
What is personal data?
Personal data is information relating to an identified or identifiable natural person.
This is a broad term and includes a wide range of information. The GDPR expressly states it includes online identifiers such as cookies.
Is information about legal entities personal data?
No. However, information about sole traders and partnerships is likely to be personal data.
What are the rules for processing personal data?
All processing of personal data must comply with all six general data quality principles. Personal data must be: (i) processed fairly, lawfully and transparently; (ii) collected for specific, explicit and legitimate purposes and not processed in a manner incompatible with those purposes; (iii) adequate, relevant and not excessive; (iv) accurate and, where necessary, up to date; (v) kept in an identifiable form for no longer than necessary; and (vi) kept secure.
The processing of personal data must also satisfy at least one condition for processing personal data. These conditions are that the processing is: (a) carried out with the data subject’s consent; (b) necessary for the performance of a contract with the data subject; (c) necessary for compliance with a legal obligation; (d) necessary in order to protect the vital interests of the data subject; (e) necessary for the public interest or in the exercise of official authority; or (f) necessary for the controller’s or a third party's legitimate interests, except where overridden by the interests or fundamental rights and freedoms of the data subject.
These rules are almost identical to the core requirements for processing personal data in the old Data Protection Directive. The European Data Protection Board has issued Guidelines on the performance of a contract processing condition for online services (2/2019).
Are there any formalities to obtain consent to process personal data?
The requirements for consent under the GDPR are strict.
To be valid, consent must be in clear and plain language and, where sought in writing, separate from other matters. Consent must be based on affirmative action so pre-ticked boxes are not acceptable. Consent might not be valid if: (i) there is any detriment to the data subject for refusing; (ii) there is an imbalance of power; (iii) consent for multiple purposes is bundled together; or (iv) the consent is a condition of entering into a contract. Finally, consent can be withdrawn at any time.
In practice, other processing conditions should be relied on where possible. Consent will only be an appropriate processing condition if the individual has a genuine choice over the matter, for example, whether to be sent marketing materials.
The European Data Protection Board has issued Guidelines on consent (5/2020).
Are there any special rules when processing personal data about children?
Consent from a child in relation to online services will only be valid if authorised by a parent. A child is someone under 16 years old, though Member States may reduce this age to 13.
In the Czech Republic, the age for the digital consent of children with processing of their personal data is lowered to 15 years of age.
Are there any special rules when processing personal data about employees?
The GDPR allows Member States to implement more specific national rules governing the processing of personal data about employees. It may also be possible to process special category personal data where it is necessary for a legal obligation in the field of employment law.
The DPA does not provide for any specific national rules in this area.
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Sensitive Personal Data
What is sensitive personal data?
Special category data is personal data consisting of racial or ethnic origin, political opinions, religious or philosophical beliefs, or trade union membership, genetic data, biometric data, data concerning health or data concerning a natural person’s sex life or sexual orientation. The decision in OT (C-184/20) might suggest this should be interpreted broadly to include publication of information that indirectly discloses these characteristics.
The inclusion of genetic and biometric data is new and an extension to the types of sensitive personal data in the Data Protection Directive.
Information about criminal offences is dealt with separately and is subject to even tighter controls.
Are there additional rules for processing sensitive personal data?
Special category data may only be processed if a condition for processing special category data is satisfied. A condition arises where the processing: (a) is carried out with the data subject’s explicit consent; (b) is necessary for a legal obligation in the fields of employment, social security and social protection law; (c) is necessary to protect the vital interests of the data subject or another person where the data subject is unable to give consent; (d) is carried out by a non-profit-seeking body and relates to members of that body or persons who have regular contact; (e) relates to data made public by the data subject; (f) is necessary for legal claims; (g) is for reasons of substantial public interest under EU or Member State law; (h) is necessary for healthcare reasons; (i) is necessary for public health reasons; or (j) is necessary for archiving, scientific or historical research purposes or statistical purposes and is based on EU or Member State law.
Are there additional rules for processing information about criminal offences?
It is only possible to process personal data relating to criminal convictions or offences if: (a) it is carried out under the control of official authority; or (b) when the processing is authorised by EU or Member State law providing for appropriate safeguards for the rights and freedoms of data subjects.
The DPA allows the processing of information about criminal offences in similar situations to those in which sensitive personal data can be processed.
Are there any formalities to obtain consent to process sensitive personal data?
Consent to process sensitive personal data must be explicit. The general restrictions on consent, set out above, will also apply. This suggests a degree of formality, such as ticking a box containing the express words “I consent”. It is unlikely explicit consent could be obtained through a course of conduct.
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Data Protection Officers
When must a data protection officer be appointed?
Both controllers and processors must appoint a data protection officer if: (i) they are a public authority; (ii) their core activities consist of regular and systematic monitoring of data subjects on a large scale; or (iii) their core activities consist of processing special category personal data on a large scale (including processing information about criminal offences).
Data protection officers must also be appointed where required by national law. In addition to the GDPR requirements, the DPA imposes an obligation to appoint a data protection officer if the processing is carried out by an authority established by law that is authorised to carry out statutory tasks in the public interest.
What are the duties of the data protection officer?
The data protection officer must be involved in all data protection issues and cannot be dismissed or penalised for performing their role. The data protection officer must report directly to the highest level of management. Details of the data protection officer must be communicated to the relevant supervisory authority.
The Article 29 Working Party has issued Guidelines on Data Protection Officers (WP243).
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Accountability and Privacy Impact Assessments
Is there a general accountability obligation?
The GDPR adds a new general accountability obligation under which you must not only comply with these new rules, but also be able to demonstrate you comply with them. This means ensuring suitable policies are in place supported by audit and training.
Are privacy impact assessments mandatory?
A privacy impact assessment must be conducted where “high risk” processing is carried out. This includes: (a) systematic and extensive profiling that produces legal effects or significantly affects individuals; (b) processing on a large scale either special categories of personal data or personal data relating to criminal convictions and offences; and (c) systematic monitoring of a publicly accessible area on a large scale (e.g. CCTV). Where the assessment indicates the risk cannot be mitigated, the controller must consult the relevant supervisory authority.
The Article 29 Working Party has subsequently issued Guidelines on Data Protection Impact Assessments (WP 248). It suggests there are nine criteria to consider to determine whether to conduct a privacy impact assessment, and that an assessment should be made if two or more of those criteria are met. This is arguably wider than the criteria set out in the paragraph above.
In the Czech Republic, the Office has the power to draw up a list of “high risk” processing but such list is likely to vary over time. In February 2019, the Office published a list of the kind of processing operations for which data protection impact assessment is and is not required. It has communicated this list to the European Data Protection Board.
On 20 November 2020, the Office has further issued the General Data Protection Impact Assessment (DPIA) Methodology to provide additional guidance on how the controllers and other subjects conducting privacy impact assessment should proceed.
In January 2024 the Office updated its previously published Frequently Asked Questions (FAQ) on the DPIA, which briefly summarizes the key information regarding the DPIA, i.e. when and how to conduct the DPIA, how to verify the existence of a high risk to the rights and freedoms of data subjects, etc. (available here in the Czech language).
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Rights of Data Subjects
Privacy notices
A controller must provide data subjects with a privacy notice setting out how the individual’s personal data will be processed. The privacy notice must contain the enhanced transparency information.
The Article 29 Working Party has issued Guidelines on Transparency (WP260).
In the Czech Republic, there is no obligation to provide this information in Czech, though it may be difficult to show that the information has been fairly provided if it is not in a language the data subject is familiar with.
Rights to access information
Data subjects will have a right to access copies of their personal data by making a written request to the controller. The initial request is free, though a charge can be made for subsequent requests. Controllers can refuse the request if it is manifestly unfounded or excessive. The right to obtain a copy of personal data should not adversely affect the rights and freedoms of others. The response must be provided within a month, though this can be extended by two months if the request is complex.
The European Data Protection Board has issued Guidelines on rights of access (1/2022).
Rights to data portability
Data subjects will also have a right to data portability where the condition for processing personal data is consent or the performance of a contract. It entitles individuals to obtain any personal data they have “provided” to the controller in a machine-readable format. Individuals can also ask for the data to be transferred directly from one controller to another. There is no right to charge fees for this service.
The Article 29 Working Party has issued Guidelines on data portability (WP242).
Right to be forgotten
A data subject can ask that their data be deleted in certain circumstances. However, those circumstances are relatively limited, for example where the processing is based on consent, that consent is withdrawn and there are no other grounds for processing. Even where the right does arise, there are range of exemptions, for example where there is a legal obligation to retain the data.
The European Data Protection Board has issued Guidelines on the criteria of the Right to be Forgotten in the search engines cases under the GDPR (part 1) (5/2019).
Objection to direct marketing
A data subject can object to their personal data being processed for direct marketing purposes at any time. This includes profiling to the extent related to direct marketing.
Other rights
The GDPR contains a range of other rights, including a right to have inaccurate data corrected. There is also a right to object to processing being carried out in the performance of a public task or under the legitimate interests condition.
Finally, there are controls on taking decisions based solely on automated decision making that produce legal effects or similarly significantly affects the data subject. The Article 29 Working Party has issued Guidelines on Automated Decision Making and Profiling (WP251).
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Security
Security requirements in order to protect personal data
The GDPR contains a general obligation to implement appropriate technical and organisational measures to protect personal data.
In addition, controllers and processors must ensure, where appropriate: (i) the pseudonymisation and encryption of personal data; (ii) the ability to ensure the ongoing confidentiality, integrity, availability and resilience of its information technology systems; (iii) the ability to restore the availability and access to personal data in a timely manner in the event of a physical or technical incident; and (iv) a process for regularly testing, assessing and evaluating the effectiveness of technical and organisational measures for ensuring the security of the processing.
Specific rules governing processing by third party agents (processors)
A controller must ensure that any processor it instructs will ensure adequate security for personal data and otherwise meet the requirements of the GDPR.
The controller must have written contracts with its processor containing the enhanced processor clauses.
Notice of breach laws
A personal data breach must be notified to the relevant supervisory authority unless it is unlikely to result in a risk to data subjects. The notification must, where feasible, be made within 72 hours. If the personal data breach is a high risk for data subjects, those data subjects must also be notified.
Specific notice of breach laws apply to the electronic communications sector under national laws implementing the Privacy and Electronic Communications Directive and to operators of essential services and digital service providers under national laws implementing the Network and Information Systems Directive.
The European Data Protection Board has issued Guidelines on Personal Data Breach Notification (9/2022) and Examples regarding Personal Data Breach Notification (1/2021).
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Transfer of Personal Data to Third Countries
Restrictions on transfers to third countries
The GDPR contains a restriction on transborder dataflows. This restriction does not apply if the transfer is to a whitelisted country.
Transfers can be made: (i) pursuant to a set of Standard Contractual Clauses; (ii) pursuant to binding corporate rules; (iii) to an importer who has signed up to an approved code or obtained an approved certification; or (iv) where otherwise approved by the relevant supervisory authority. However, following the decision in Schrems II (C-311/18) any transfer made on this basis must be subject to a transfer impact assessment of the laws of the relevant third country and supplemented by supplementary protections where necessary.
The European Data Protection Board has issued Recommendation on European Essential Guarantees for surveillance measures (2/2020) and a Recommendation on measures that supplement transfer tools (1/2020) to help conduct this transfer impact assessment. The European Commission has also issued an FAQ on the new Standard Contractual Clauses.
Transfers are also possible if an individual derogation applies. These derogations allow a transfer if it: (i) is made with the data subject’s explicit consent; (ii) is necessary for the performance of a contract with, or in the interests of, the data subject; (iii) is necessary or legally required on important public interest grounds, or for legal claims; (iv) is necessary to protect the vital interests of the data subject; (v) is made from a public register; or (vi) is made under the so-called minor transfer exemption.
The European Data Protection Board has issued Guidelines on derogations applicable to international transfers (2/2018). Finally, the European Data Protection Board has issued draft Guidelines on the interplay between Article 3 and international transfers (2/2018) to help identify when a transfer takes place.
Notification and approval of national regulator (including notification of use of Standard Contractual Clauses)
In general, there is no need for prior approval from a supervisory authority. However, this depends on the justification for the transfer.
For example, there will be no obligation to get approval for the use of Standard Contractual Clauses (though it is possible some supervisory authorities may want to be notified of their use). In contrast, it will be necessary to get approval to rely on binding corporate rules, and the supervisory authority must be informed of transfers made using the minor transfers exemption.
Use of binding corporate rules
The GDPR places binding corporate rules on a statutory footing. It will be possible to obtain authorisation from one supervisory authority (subject to approval through the consistency mechanism) that will cover transfers from anywhere in the EU.
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Enforcement
Fines
The GDPR is intended to make data protection a boardroom issue. It introduces an antitrust-type sanction regime with fines of up to 4% of annual worldwide turnover or €20m, whichever is the greater. These fines apply to breaches of many of the provisions of the GDPR, including failure to comply with the six general data quality principles or carrying out processing without satisfying a condition for processing personal data.
A limited number of breaches fall into a lower tier and so are subject to fines of up to 2% of annual worldwide turnover or €10m, whichever is the greater. Failing to notify a personal data breach or failing to put an adequate contract in place with a processor fall into this lower tier.
Fines can only be imposed where there is an intentional or negligent infringement of the GDPR, see Deutsche Wohnen (C-807/21).
The EDPB has published Guidelines on the calculation of administrative fines (04/2022).
Imprisonment
The current penal code of the Czech Republic contains the following two criminal offences in connection with misuse of personal data.
The first is causing serious harm to the rights or legitimate interests of a data subject by misuse of personal data (even out of negligence): (i) collected in connection with the execution of public authority powers; or (ii) collected in connection with employment, profession or function while breaching state-imposed confidentiality obligations. This criminal offence might be punished by up to three years of imprisonment. For cases of more serious consequences or of more serious motive for this this criminal offence, it may be punished by up to eight years of imprisonment.
The second is misuse of personal data for stalking. This criminal offence might be punished by up to one year of imprisonment. For cases of more serious consequences of this this criminal offence, it may be punished by up to three years of imprisonment.
Compensation
Data subjects have a right to compensation in respect of material and non-material damage. This requires more than a mere infringement of the GDPR and there must be actual material or non-material damage, however there is no minimum threshold of seriousness before compensation is available, see Österreichische Post (C-300/21).
Other powers
Regulators will have a range of other powers and sanctions at their disposal. This includes investigative powers, such as the ability to demand information from controllers and processors, and to carry out audits. They will also have corrective powers enabling them to issue warnings or reprimands, to enforce an individual’s rights and to issue a temporary or permanent ban on processing.
Practice
Below is an overview of the Office’s upcoming inspection plan for 2024 and an overview of recent supervisory activities in 2022-2023, based primarily on its most recent annual report issued for the year 2022 (“Annual Report 2022”) and Office’s press releases.
- With respect to personal data protection, in 2022 the Office initiated 25 inspections and completed 20; in 2023 the Office initiated 35 inspections and completed 25. With respect to ePrivacy, in 2022 the Office initiated 12 inspections, and completed 10; in 2023 the Office initiated 13 inspections and completed 15. In 2023, the Office fined cybersecurity software company Avast (now Gen) EUR 13.7 million for allegedly illegally processing consumers’ data. After it emerged in the media that Avast had collected and sold private browsing data so detailed that it could potentially identify its customers. The consumer rights organization FACUA reported the facts to the Spanish Data Protection Agency (AEPD) that later transferred the case to the Office. This has been the highest fine issued by the Office up to date for breaching personal data protection rules. The case is pending.
- In 2023, the Office imposed its highest final fine to date for a breach of ePrivacy rules in the amount of CZK 7.7 million (circa EUR 303,000) for sending unsolicited commercial communications to third parties. The amount of the pecuniary administrative fine reflected, in particular, the number of the addressees (over 40 million persons), the length of time period over which the commercial communications were sent (since 2015) and the manner in which they were addressed (the commercial communications were embedded in e-mail messages containing confirmations of purchases, while the addressees had no possibility to opt out of the commercial communications in any way; in addition, other legal requirements were breached, such as the clear and unambiguous identification of the message or the unambiguous identification of the entity for whose benefit the commercial communications were disseminated).
- According to the Office’s Annual Report 2022, the most common breach of the GDPR rules in 2022 was the processing of personal data without a valid legal basis. As the “challenge of 2022”, the Office identified compliance with cookie legislation, where the Office conducted 35 in-depth analyses of websites. It was found that the most common violation in this regard was the incorrect setting of the cookie bar, or difficulties in withdrawing the consent provided with cookies, as well as a disproportionate period of validity of cookies in relation to their purpose. In addition, the Office conducted the following notable inspections: an inspection of the Tečka application used for Covid-19 vaccine certificates; the processing of personal data from CCTV; the processing of personal data by bailiffs, and the use of randomly generated telephone numbers. The Annual Report 2022 also reveals that the Office dealt with a high number of notifications on potential violations of GDPR to data controllers in 2022 compared to previous years. Moreover, the number of data breaches notified to the Office in 2022 was also slightly higher than in the previous year.
- The Office’s Annual Report for 2023 is not yet available. As regards to the Office’s inspection plan for the year 2023, this included, among other things, a focus on the processing of personal data in attendance systems in the use of social networks or in large-scale CCTV systems. Inspections also focused on selected information systems of the Police of the Czech Republic and on telemarketing.
- The Office has also published its inspection plan for 2024 (available in Czech here). The main areas targeted by the individual inspections include the use of data from the population register by the public authorities, the recording of telephone calls, the processing of personal data in information systems within the Schengen area, the processing of personal data by the Police of the Czech Republic, and the sending of unsolicited commercial communications. In 2024, the Office will again participate in the Coordinated Enforcement Framework 2024 together with other European supervisory authorities. This will centre on the implementation of the right of access by data controllers.
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ePrivacy | Marketing and cookies
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National Legislation
ePrivacy laws
Act No. 480/2004 Coll., on Certain Information Society Services (the “ECA”) implemented Article 13 of the Privacy and Electronic Communications Directive in the Czech Republic.
Further ePrivacy rules based on the Privacy and Electronic Communications Directive and the European Electronic Communications Code have been implemented in the Czech Republic by the Act No. 127/2005 Coll. on Electronic Communications (the “Electronic Communications Act”).
The ECA and the Electronic Communications Act have been updated to implement the amendments to the Privacy and Electronic Communications Directive.
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Cookies
Conditions for use of cookies
Cookies are regulated by the Electronic Communications Act. Under the Electronic Communications Act, cookies may be used only if the subscriber or user has given a prior demonstrable consent for the scope and purpose of their processing (i.e. the opt-in principle). Such obligation does not apply for technical storage or access for the sole purpose of carrying out or facilitating the transmission of a communication over an electronic communications network, or as strictly necessary in order to provide an information society service explicitly requested by the subscriber or user. This reflects the opt-in principle required by the Privacy and Electronic Communications Directive. In addition, the Electronic Communications Act does not expressly refer to the use of browser settings as a means to obtain consent. Although the Office does not rule out this possibility, it emphasizes that a pre-set consent in the browser does not meet the statutory conditions for consent.
In 2023, the Office performed a large number of inspections related to the use of cookies. Based on the inspections performed during the first half of 2023, the Office identified that the most frequent or most significant violations of the GDPR relating to cookies include: (i) uploading cookies to visitors’ devices without their consent (where required); (ii) lack of consent to the processing of personal data; (iii) insufficient fulfilment of the information obligation (insufficient classification of individual cookies or information available only in English language); (iv) the impossibility (or significant complication) of withdrawing consent to the processing of personal data via cookies; (v) the placement of options for “consent” and “non-consent” in different layers within the cookie bar in order to manipulate visitors to provide consent (a so-called “Deceptive Design Pattern”); and (vi) the cookie bar either does not react or does not react sufficiently to the individual settings of the processing of personal data via cookies.
Regulatory guidance on the use of cookies
On 6 March 2023, the Office published an updated version of its cookie guidelines, titled “Recommendations and rules for cookies and cookie bars”. These updated guidelines provide practical information for website operators and visitors on the basic rules for using cookies and cookie bar settings.
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Marketing by E-mail
Conditions for direct marketing by e-mail to individual subscribers
Under the ECA, direct marketing e-mail may only be sent to individuals: (i) with their prior consent; or (ii) when it relates to a product or service similar to the one already purchased by the individual subscriber with the respective provider in the past, i.e. the individual can be considered as a customer of the provider.
Conditions for direct marketing by e-mail to corporate subscribers
The same conditions as for individual subscribers apply also in case of legal entities being the subscribers.
Exemptions and other issues
The ECA also prohibits direct marketing e-mails from being sent if: (i) the identity of the sender is disguised or concealed; (ii) the e-mail is not clearly and distinctly identified as commercial communication; or (iii) where an opt out option is not provided.
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Marketing by Telephone
Conditions for direct marketing by telephone to individual subscribers (excludes automated calls)
Under new rules for direct marketing by telephone introduced by the amended Electronic Communication Act with effect from 1 July 2022, the opt-in principle applies. Only recipients who have stated in the public telephone directory that they wish to be contacted for marketing purposes may be directly marketed to via telephone.
GDPR applies to the processing of telephone numbers to the extent they constitute personal data.
Conditions for direct marketing by telephone to corporate subscribers (excludes automated calls)
The same conditions as for individual subscribers apply also in case of legal entities being the subscribers.
Exemptions and other issues
The regulation effective from 1 July 2022 does not affect already established relationships between businesses and customers who can be contacted in line with the GDPR. The legal regulation of direct marketing by telephone introduced by the Electronic Communications Act applies only to contact when there is no relationship between the caller (contactor) and the called party (contacted).
The Czech Telecommunications Office, the Office and the Ministry of Industry and Trade have issued their joint guidance on the new rules relating to telephone marketing on 21 December 2021.
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