Court case III OSK 161/21 – Court Ruling (Poland, 2021)

The Company V. obtained from potential customers (i.e. persons applying for a loan) and customers the following consent: "I consent to the processing of my personal data by V. Sp. z o.o. for the purpose of direct marketing relating to the products and services of entities belonging to the "[...]" capital group, carried out by using telecommunications terminal equipment and automatic calling systems in accordance with Article 172 of the Telecommunications Law (Journal of Laws of 2014, item 234, as amended), and for this purpose I make available the data provided by me in this application with regard to: e-mail address and telephone number.". In relation to persons who gave the above consent, the Company conducted marketing activities by making telephone calls, sending text messages and emails. The General Inspector for Personal Data Protection issued a decision against the Company, which was appealed to the Provincial Administrative Court in Warsaw. In its judgment of 26 February 2018, ref. II SA/Wa 943/17, it dismissed the complaint of the company V. The Company appealed from the above judgment. The dispute concerned whether, on the grounds of the Act of 29 August 1997 on personal data protection, it is permissible to express a single consent to processing personal data for the purpose of direct marketing of the Company's products and using telecommunications terminal equipment for the purpose of such marketing, referred to in Article 172 of the Act of 16 July 2004 Telecommunications Law. The Supreme Administrative Court has dismissed the cassation appeal. The court held that the expression of consent to the processing of data for marketing purposes is a prerequisite for the lawfulness of processing of personal data by the data controller, and the consent is independent of the means by which the marketing is directed and should be separated from the means of direct marketing. The person giving consent must understand the essence of the consent, its purpose and