5780447568

120 Btrata Gadek

1.    the accusation should pertain to an act of compctition.

2.    thc acMn qucstion ought to constitute a breach of thc law or good practicc,

3.    it results in a threat or hanu to anothcr cntreprcncur or customcr,

Quito importantly, Art. 16 of the l.e.u.c. dccms an advertiscmcnt disho-

ncst if it inlcrfcrcs in one‘s privacy to a considcrabie cxtcnt, cspecially if the techmcal meant of transfcrring information arc abused.

I‘hc conditions that result front thc rcgulations ated herc arc also bmdio| in thc casc of assessing an act dcscribed in Art. 10 of thc l.r.s.o. Whca (if at all) is sending unsolkntcd commercial Information an instance of unfur compctition? Lct us make a fcw generał rcmarks beforc this quesłion a answered. Drawing a linc betwccn what is atlowed and what is not tn tryiag to rcach a customcr invariably rcquircs that the interests of all tbc partia arc considcrcd.¹’ Lct us point to the most import ant cir cum stan ces that need to be taken into considcration.

The right to frcely usc advcrtising measures is a function of the widdj acceptcd principlc of freedoro of compctition. The lattcr can only be curtailei m justifiablc arcumstanccs. One has to make allowanccs for advertisaj measures captivating thc rccipients' attcntion, as they arc racant to do »o; advcrtising is about conslant innuence on thc cusłomer. An cnucprcneur will be cxpansivc, as his (or her) purpose is to sell his wares, mindlesa cf the fact that oftcntimcs the rccipients of advcrtising slogans have no doirt to buy thc paiticular thing. The advcrtiser strivcs to dcvclop thc wish oblain a commodity or a servicc in his customcrs. A viablc conclusioo e that pestering one's customcrs is part and parcel of market econani) "Pestenng" in itself, thcrcforc, can hardy be deemed dishonest. It can ooly bccome dishonest when accompanicd by additional clcmcnts, which bńnp about a different avsessmcnt of the State of affairs. showing it in a dc* light. An esample is the risk of an error due to an advcrtiscmcnt. Unar-guably, thc principlc of frcc cconomte activity is in such a casc mferior to thc ncccssity of protccting customcrs rights. The legislator also outliwi significant intmsion into privacy (Art. 16 of the l.e.u.c.) with a view to protccting onc's mental balance against unlawful pcslcring. Naturally, though, thc limits of privacy have to be rcasonahly dclincatcd. For tha reason, "significant" intrusion into pnvacy has bccn outlawcd. This make thc argumentation of ovcruse of thc rccipicnt's oquipmcnt, advocated b; proponents of thc ban, erroncous. In aclual lifc, it is sporadic for tbe mailhos to becomc "fuli" with Communications. Morcovcr. speaaliad

" For a raorc lhorougb dlocuMOO, tcc B Gadek, m Gtntrałna klauzula adpov*drutn*a 10 ciym nteue żernej konkurencji [General Proviiioft Re^ponaibtlity for tn Unfair OcapcC Act), Zikanjcac 2003, p 12? pawia

software can help prcvcnt any unwantcd intrusion. The argument of wasting ooc's timc having to sort onc‘s mail also falls short of being convinong, as tbc same is truć of advertiscmcnls sent by ordinary mail, which arc not banned. Similarly, caplivating thc rccipicnt‘s attention is not ałways present. Whilc it is apparent in the case of on-tbe-phone advertising, it is absent from adverts sent by email. The rccipicnt is. after all, at liberty to pick thc timc to read his email, or to ignorc it altogctbcr. There is also no diroct ccntact bctwcen thc sender and thc rccipicnt. Tbus thc key element sccms to be thc frcquency and volumc of information sent by demonie mail. I nm of thc opinton that sending unsolicitcd commercial contcnt by clcclronic mail may constitute an act of unfair compctition. but not ncccssarily so. The prercquisitc for it to be thc casc is compliance with the requircmcnts of the l.e.u.c. Lct us quoie but one csamplc of u justificd casc of distoyal compctition. If the recipicnt’s mailbox is purposefully floodcd with comraer-cul contcnt, or if thc said contcnt is sent despite the rccipicnfs cxpress dtsagrceraenl, we arc dcaling with a casc of disloyal competition. A charge of dishonest advcrtising that intcrfcrcs with thc rccipicnt’s privacy as dcfincd by thc law can thcrcforc be trumped up.

Lct us now sum up thc discussion thus far. The Polish legał system has itttroduccd a ban on sending unsolicitcd commercial information by means of dectromc mail. 1’roponcnts ol thc abovc opinc that thc law on rendering ierviccs on-linc pays hcod to long-standing argument* for protccting the _Kprivacy of mailbox u sers. Howevcr, skepties will arguc that thc reguiation io band has not brought about expectod resulls, as its introduction did not endicatc thc undesirable phenomenon. As it is, thc only novclty is the provcnancc of the Communications; we no longer rcceive local Communications, hut fordgn ones. The Polish solution is sometimes dismissed as bannful for thc local companies, as it dcprives them of a tool to rcach tbeir customcrs. What with the dynamie* with which the elcctromc market is dcve!optng, this is a relcvant claim.

The finał problem then is which is thc nght argumentatioo? The need to icspcct privacy is. without a shadow of a doubt, a laudaMc and bcautiful ilogan. it must be borne m mind. tbough, that by protccting one party you ®evitably curtail another. Lach ban has thus its price, which in our casc is fenited compctitivcncss on the part of local companies. I would not go so far as to say that 1 advocate unlimited freedom of bchaviour as regards thc asuc under scrutiny herc. However, when 1 think of thc Internet as a means of transgressing national boundarics, I vouch for a carcful and balanccd ioicmmiion on thc pan of thc legislatiw aulhority rather (han radical hans that are impossible to fully cxccutc anyway, and as such bring morc barrn than good.