5780447566

116 Brata C'odek

infringcmcnt of othcr acts, notably l.c.u.c. In practice, dilTercnt situatio* may apply. A distinction bas to bc madc bctwcen “floodmg" a compctitor with unwantcd ads and thc odd (and rclevaat) commcrdal commumcatsoa The lattcr shouid bc disapprovcd of. If it łcads to harassing thc compctitoc. a charge of unfair compctition may bc consklcrcd. The law on climinatwi unfair compctition of 1993 place* at thc disposal of thc aggncvcd party a cntirc rangę of pro?ective measures, including a claim to stop the lilcp; activjty and to compcnsatc for thc los* causcd by it. Sending rdcv*< commcrcial contcnt under justifiablc drcumstanoes is a diiTercnt outter altogcthcr, cvcn if it shouid rcsult in strengthcmng one’s position oo the market. It seems that soch bchaviour on thc part of thc cntrcprccear sccking contact with another professional shouid bc allowcd. On baUcce, 1 am of the opimon that Art. 10 of l.r.s.o prohibits sending co nunc roi content only to consumers. If thc rccipicnt of an unwantcd email is u cntrcprcncur, this shouid be subjcct to thc law on climmating unfair cca-pctition rather than on rendering semces on-linc.

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Lei us now go on to disaiss what is meant by “unsolicited commeraa Information.^M Firstly. we havc to coosidcr the qucstion of when the eonie* of a message is actually commcrdal inforraation. Then we will proceed to a discussion of thc circumstanccs that make it “unsolicited”.

The mcaning of “commcrdal Information’* is explicated alrcady in the act under scrutiny herc. According to p. 2 Art. 2. commeraal informatioc is “any information that is dircctly or mdircctly meant to promotc goods, scrviccs or goodwill of an cntrcprcncur or an cmployce (whosc nght to work depends on mccting roquirements spccificd in thc rclevant rcgulatiotuk to the cxdusion of Information enabling clcctromc commumcation wiń somcone and information about goods and scrviccs that is not aimed it achievmg a desired commcrcial cfTcct. specifically one that is not paid for or that does not bnng benefit from produccrs, scllcrs and scrvicc-providat”

The abovc-mcntioned text indicatcs that thc Polisb legislator provida a particularly widc scopc of forbidden information. It shouid bc noted tlttt the scopc ineludes information that is only indircctly aimed at promoUai thc scndcr’5 commcrdal a et m ty. This may mcan that the scopc may bc cMcndcd to include all typcs of commeraal information. rcgardlcss of ® contcnt. To exempbfy: how shouid we treat a letter that is ncutral c contcnt, but wbose address contams the name of thc company? A qucstkn arises herc is this not a casc of endorsement by promotmg thc company^

Jogo? By extcnsion, docs this kind of communication not run counter to thc kfislator's intcntion as dcmonstratcd in Art. 10 of l.r.s.o? IIaving said this, łet us go on to discuss morc dctailcd issues pcrtaining to thc sensc of thc upresuon “unsolicited commercial Information." The first issue is that of tcceptance of sending commeraal contcnt by electronic mail, that is com-eumcating to thc other party thc wiUingncss to make a dcal. Incidentally, a the Polish legał system thc ofTcrcr is bound by his or ber ofTcr¹ It ippean that this spceific character of thc information that constitutcs an offer is reievant to our discussion.

The act on rendering scrvicrs on-linc does not ofTcr a point-blank solulion as regards this parltcular issue. Thcrcfore we havc to turn to thc wy espression “commcrdal information.” 1 am of thc opinion that it nfen to discoursc that aons at informing customers about thc profile of ooes activity, thc scrvioes and commoditics offered etc., but without explicit wbalisation of thc willingness to make a dcal or an agrcement. The sole purpose of this discoursc is informational, and they have no legał or dvic eHects Thus acts that arc binding for thc sender, in particular offers. are outside thc scopc of Art. 10 of thc act on rendering serviccs on-line.

Ali this may mcan that one shouid not attach great importancc to thc wording Ilowcver, that our rcasoning may bc correct is borne out also by other arguments. The offer, understood as the way of making a dcal, is a very tignificant cconomic tool in thc hands of entrepreneurs. Wcrc making offers to be ban na!. it would mcan curtailmcnt of cconom¹- freedom and libcrty to enter into agreements. This is always of somc significancc as far as economic and todal rdations arc concerncd. Such a ban would bavc to bc cxpliatly justificd ind formulatcd in a rc!cvant law. It scems unacccptable to assumc that such iban cxists. This rcasoning is also borne out by Art. 66 of the Civ.C. Thcrc w leam that it is allowed to make an offer by clcctromc mad and that such an electronic offer is hindmg as long as thc other party acknowlcdgcs roccipl.

It is worth noting here that thc qucstion of whelher offers can bc emailed is also raiscd in another legał rcgulation. Art. 6 p. 3 of thc law on pcocecting ccrtain consumcr rights’ says that: “Using a tdephone, vidco-phone. facsimilc, electronic mail. automatic paging dcvicc or any other means of electronic communication in order to make an offer for a deal is only allowed with the consumers pnor conscnt." The cxprcssion "to make ao offer for a dcal" bnngs to mind, on thc one hand, thc ofTcr as spccificd in Art. 66 of tbc Gv.C., and on thc other. mcrely an invitation to ncgotiate,

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la accordaoce with An. M of the Crv.C. § I dedarmg ihe wnUingleM lo m¹k« a <tciJ contitutet aa otTer. ai long as rcleva»l prmnioai of the agrcement ue ipcofied.

'Art 6 p. 3 ot Ihe law on protccting cmam coatuner nghti and labilily for Iom due 10 u«g a dangerooi product was amendod in Art. 27 of ihe law oo rendering xrvKci on lin¹ (I of L . No. 21 iłem 27|).