Cookies and other changes in electronic communications law

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Beginning next year, Czech ecommerce merchants will very likely have to rethink their online marketing consents, and this includes more than just cookies. On 15 September 2021, the Chamber of Deputies approved an amendment to Act No. 127/2005 Coll. on Electronic Communications, which implements the European Electronic Communications Code (Directive (EU) 2018/1972).

The amendment also corrects an inconsistency of Czech law with European legislation on cookies (Article 5(3) of Directive 2002/58/EC on privacy and electronic communications). Currently, Czech law allows for the so-called “opt-out principle”, meaning that cookies can be stored on a user’s device and processed so long as the user does not refuse to do so. But European legislation requires the user to give explicit consent to the processing of cookies (the “opt-in principle”). The amendment adopts this requirement.

If signed by the Czech President, this new cookie legislation will take effect from 1 January 2022.

Similarly to the rest of Europe, Czech ecommerce/online merchants and service providers will therefore have to collect users’ consent to the processing of cookies (other than those that are strictly necessary cookies, such as those necessary for proper display of the site). This will likely require the use of popup banners when viewing a website, which users may find rather annoying. In our opinion, and contrary to the prevailing practice, it will not be sufficient for these popup banners to have merely a general consent to the processing of cookies (the “I agree” or “accept” option) or to lead the user to the preference settings page (the “manage cookies” option) to make a choice regarding the scope and method of processing cookies. Article 7(3) of the GDPR sets out that a refusal of consent should be as simple for the user as granting consent is; therefore, the popup should also include an option that rejects all processing of cookies except strictly necessary cookies (a “reject all” option).

In addition to cookies, the amendment introduces other new regulations (with effect from the first day of the third month after publication of the amendment in the Collection of Laws):

  • A change in the telemarketing regime from opt-out to opt-in, i.e. entrepreneurs will now only be able to use the numbers of those users who have consented to this for telemarketing purposes (amendment to Section 96 of the Act).
  • It further requires the government to reduce certain barriers to the market by facilitating entrepreneurs’ access to limited resources (such as specialized dial-in numbers, or broadband frequencies) as well as to ensure conditions for easier building of electronic communications networks and provision of services.

The full text of the amendment can be found here (in Czech only).

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