Spam is increasing worldwide, affecting both promotional emails and cold-calling. Much of it is now intercepted and blocked by technical means. However, many spam messages still reach the recipient. Below, we clarify the legal situation regarding spam calls and messages.
Spam: What Are Unwanted Promotional Emails and Cold-Calling?
Spam is referred to by lawmakers as "unsolicited messages." This topic falls under the ePrivacy category and is regulated in Austria by Section 174 TKG (Telecommunications Act).
Promotional Calls – Always Prohibited Without Consent
Cold calling, i.e., contacting third parties by phone for promotional purposes without prior consent, is always impermissible. Customer acquisition in this way should be avoided to not risk administrative penalties (see below). Consent can be given by the user of the telephone line or an authorized user. It is important to note that this rule also applies in a business context. Therefore, calling potential business partners for promotional purposes, for example, if their number was found on a website or in the phone book, violates § 174(1) TKG just as it would for private households. Promotional faxes are considered equivalent to telephone calls.
Promotional Emails – Generally Prohibited Without Consent
Similarly, promotional emails are generally prohibited without consent, although there are exceptions. Promotional emails are the most common application of "electronic mail," a term used by lawmakers in § 174(2) TKG. However, under certain circumstances, a promotional message via social media can also be considered unlawful spam. These messages are prohibited without prior consent. There is also a privilege for promotional messages sent to businesses. Since a change in the law, it no longer matters if the message is sent to more than 50 recipients.
Consent is only dispensable under the conditions of § 174(4) TKG. The following conditions must all be met:
- The sender received the contact information for the message in connection with the sale or a service to their customers.
- The message is for direct advertising of the sender's similar products or services.
- The recipient has clearly and distinctly been given the opportunity to refuse such use of their electronic contact information free of charge and easily at the time of collection and with each transmission.
- The recipient has not opted out of receiving such messages, particularly by not being listed in the register mentioned in § 7(2) ECG.
The ECG list is maintained by the RTR. Companies can also check whether an email address is included in the list.
Messages where the sender is not clearly identifiable or is disguised are generally prohibited under § 174(5) TKG, even if consent is given.
Difference Between ePrivacy and GDPR
Often, spam violations are reported to the Data Protection Authority. However, it can only take action if a data protection violation is also present. This can be illustrated with a case example:
A company collects email addresses from various sources, both public and non-public, to create a mailing list and inform about a new product. There was no prior contact with any of the addressed persons or companies. The promotional email is then sent to everyone on the mailing list.
GDPR: Collecting Data from Private Individuals for a Mailing List
The GDPR applies to the processing of personal data. Collecting the data and inputting it into a database constitutes a violation of the GDPR concerning private individuals. This also applies to personal data in a professional context, such as firstname.lastname@company.com, but not to generic addresses like contact@company.com.
TKG: Sending to All Email Recipients on the Mailing List
Sending emails to the mailing list entirely violates § 174 TKG, which implements the ePrivacy Directive in this area in Austria. Both areas are thus affected in the entire case, but not every violation of the TKG is simultaneously a GDPR violation.
Promotional Emails and Cold-Calling: Who Is Responsible for Penalties Against Spam?
Austria has a dedicated supervisory authority for TKG violations. The telecommunications office, the Telecommunications Authority of the Republic of Austria, is responsible for complaints about promotional messages, cold-calling, etc. As explained above, there may also be a data protection violation.
What Penalties Are Threatened?
Anyone who sends spam messages, makes unwanted promotional calls, or violates other provisions of § 174 TKG can receive an administrative penalty under § 188 TKG.
| ffense | Maximum Penalty |
|---|---|
| Cold-calling – promotional calls without consent, faxes without consent | EUR 100,000 |
| Suppression of phone numbers in promotional calls | EUR 75,000 |
| Sending spam emails, spam SMS | EUR 75,000 |
| Concealing the sender and similar offenses | EUR 75,000 |
The TKG applies even if the spammer is abroad, as long as the affected user is within the country and receives the message there (§ 174(6) TKG). Of course, it is challenging for the authority to enforce penalties on offenders outside the European Union. However, enforcement within the EU should generally be possible.
Do You Have Further Questions on the TKG?
Do you have further questions about legally compliant advertising or want legal advice in other areas of telecommunications law? As attorneys, we specialize in this and other legal fields. Please contact our law firm at office@geuer.at or by phone at +43-1-4380072. We look forward to your inquiry.