Unsolicited electronic advertisement (spam)
AMENDMENT OF LAWS CONNECTED WITH SPAMS
(Act 171 of 2005 amending Act 108 of 2001)
Hungarian legal regulation concerning spam was amended as of 1 January 2006. The amended Act 108 of 2001 on electronic commerce and certain issues of information society related services includes new terms and regulations of powers in respect of unsolicited electronic messages.
The Act does not define spam as electronic advertising message but as “electronic advertisement” and declares that such advertisement may be delivered by e-mail or other similar communication means (e.g. MMS, SMS) only with the explicit prior consent of the addressee (so-called opt-in system).
In addition to the term of electronic advertisement, amendment of the Act introduces the terms “electronic advertiser”, “electronic advertisement service provider” and “electronic advertisement publisher” and lays down their liability connected with unsolicited electronic advertisements.
The rules applicable to the authority procedure connected with spam sending have also changed. According to the amendment an unsolicited electronic advertisement can be reported to the National Communications Authority's Office that examines the complaint under an electronic advertisement related supervision procedure. As a result of the changed competence consumers may turn to the Consumer Protection Inspectorate “only” for infringement of rules applicable to the business advertising activity connected with electronic advertisements.
The National Communications Authority may order in its procedure termination of the illegal situation, may prohibit continuation of the illegal activity and may impose on the offender an electronic commerce fine amounting to between HUF 50,000 and HUF 500,000.
In addition to the above amendments concerning spam Act 181 of 2005 amended several provisions of the initial Act, such as in connection with the term of private communication, possibility of restricting electronic services, certain rules of the removal of notice and the regulated professions.
Useful information about unsolicited mail
Electronically delivered unsolicited advertisements (spam) have been causing a rising problem for users, the advertising industry, communications operators and the authority too. The National Communications Authority intends to clarify the situation with the following documents and presents the solutions available for management of the problem.
The study “Review of regulation on electronically delivered advertisements” prepared on behalf of NCAH, the collection of relevant laws and information about which body customers can contact and how in connection with unsolicited mail are available. The collection of links shows the contact addresses of national and international sites addressing this issue and sites where anti-spam programs can be downloaded are also linked here.
Possibility of action when detecting spam
If you receive an unsolicited electronic advertisement (spam) you can launch an action at your discretion in front of various bodies on the basis of various statutory provisions. Procedures can be instituted separately or simultaneously.
If you want to make a complaint because an electronic advertisement was sent to you without your prior consent you can request the National Communications Authority’s (NCAH) Office to start a supervision procedure. If you want to make an objection to business advertising activity connected with electronic advertisements you can make a report to the Consumer Protection Inspectorate. If you feel offended by the management of your personal data you can at your discretion turn to the Data Protection Commissioner or to a local court (or both). If you feel that a spam infringes your personal rights you can ask for legal remedy from a court.
Supervision procedure conducted by the National Communications Authority's Office in connection with electronic advertisements
According to the Hungarian legislation on spam (Article 14 (2) of Act 108 of 2001 (Ekertv.)) electronic advertisement can be sent by e-mail or equivalent individual communication means (e.g. SMS, MMS) only to those who have given their explicit prior consent thereto.
This means that if the sender of the electronic advertisement cannot prove that you previously gave your consent he infringes the law.
In this case upon your request NCAH takes action under supervision procedure connected with electronic advertisement. If at the end of the procedure the Authority’s view is that the advertiser infringed the rules applicable to sending electronic advertisements it can order termination of the illegal situation, may prohibit the offender from sending additional unsolicited electronic advertisements and may impose an electronic commerce fine amounting to between HUF 50,000 and HUF 500,000.
You can make a report by mail addressed to the Customer Service of NCAH's Office and at NCAH's Directorate of Informatics Regulation or by e-mail to the firstname.lastname@example.org address.
To make the report you can use the letter form attached to the site.
Action by the Consumer Protection Inspectorate under an advertisement supervision procedure
If the message in the spam infringes the rules applicable to the business advertising activity (e.g. misleading advertisement, pornographic advertisement, tobacco advertisement, etc.) you can make a complaint to the (county/Budapest) Consumer Protection Inspectorate (FvF) that conducts an advertisement supervision procedure.
If the Consumer Protection Inspectorate establishes an infringement of law (i.e. that the unsolicited electronic advertisement infringes a prohibition of advertising) it can order the offender to stop publication of the illegal advertisement and prohibit the offender from sending another illegal advertisement. Additionally FvF can impose on the offender a fine, whose amount is in line with the conditions of infringement of law.
Action by the Data Protection Commissioner for infringement of personal data
An e-mail address is a personal data. If anyone uses your data in an unauthorised way (see more about legal and illegal use in Act 63 of 1992 on the protection of personal data and publicity of public data (Avtv)) you can turn to the Data Protection Commissioner. You can do it personally, by phone, fax or e-mail. If the Data Protection Commissioner establishes that your personal data were infringed he calls on the offender to terminate the data management. If the offender fails to do so the Data Protection Commissioner may order closure, deletion or destruction of certain data managed in the unauthorised way. One of the most important means available to the Data Protection Commissioner is publicity: the Data Protection Commissioner may inform the public about the illegal data management, the person of the data manager (or data processor) and other issues connected with the case.
Court proceedings for infringement of the Data Protection Act and personal rights
Anyone whose rights were infringed can turn not only to the Data Protection Commissioner but also to court for infringement of Avtv. In this case the court will immediately conduct proceedings. If the court establishes the infringement in connection with the data management it orders deletion of the data and requires the offender to take into consideration the offended person’s right of objection.
The court may act not only in connection with personal data but also on more general grounds, that is, on the basis of the provisions of the Civil Code for the protection of personal rights. In the case of infringement of personal rights (e.g. privacy of mail) the court can be requested to establish the occurrence of infringement of law, to require the offender to terminate the illegal activity and prohibit the offender from further infringement of law, and to require payment of damages according to the rules of civil law liability.
Electronic advertising mail used to request consent
After the amendment of Act 108 of 2001 on electronic commerce services and certain issues of information society related services (Ekertv.) that entered into force on 1 January 2006 we observed in numerous cases unsolicited electronic advertisements (spam) in which the addressee was informed that the mail is used to request consent, which is needed for compliance with the provisions of Ekertv., that the sender may later legally send advertisements to the addressee. This practice is based on incorrect interpretation of the Act and is itself illegal!
Examples of such illegal mail in which consent is requested:
“We would like to send you an information document about gardening and request your consent for this. If you permit it click on the www.kiskertem.hu link.
This is not an advertisement, but a mail in which we request your consent required in Article 14 (1) of Act 108 of 2001. We did not register your address, it is not included in our list.”
“According to applicable laws we need your consent for sending you information. This is a mail in which we request your consent required in Article 14 (1) of Act 108 of 2001. You can make your request defined in paragraph (2) of the Act on the above link. According to the provisions of paragraph (4) of the Act we will send you an advertising mail only after you have given your consent.”
According to the applicable law mail in which consent is requested qualify as unsolicited electronic advertisement because
- they are unsolicited;
- they advertise a service or product;
- the sender did not obtain the addressee’s prior consent.
This means that the mail in which consent is requested fulfils the conditions of spam as defined in the Act which says that “electronic advertisement: means any communication made with an information society related service with the objective of directly or indirectly publicising an undertaking, organisation, person pursuing commercial, industrial or handicraft activity, its/his goods, service or activity, or contains information connected with the fulfilment of a social objective.”
Consent can be legally obtained for example:
- by registration on a website;
- by checking a box next to the words “I give my consent for electronic advertisement to be sent to my e-mail address ………………………” in writing or on the Internet;
- by returning a printed statement of consent, or
- a flier with such content, or
- direct relevant written request of the addressee.
In the case of requests connected with mail in which consent is requested the National Communications Authority's Office establishes the infringement of law in its electronic advertisement related supervision procedure.
We are ready to answer your questions connected with unsolicited electronic advertisements on the email@example.com e-mail address.