Implementation of the Omnibus Directive – impact and requirements

One of the key elements of the Omnibus Directive is to expand consumer protection in terms of digital services and distinguish between the digital content and digital services. This distinction is important in the context of the right of withdrawal applicable to contracts for the supply of digital services, whereas the consumer may not invoke this right with respect to digital content not supplied on a physical medium (provided that the prerequisites specified in Article 38 point 13 of the Act on Consumer Rights are specified).

Following the Omnibus Directive, the amended Act on Consumer Rights will expand its application to include the contracts, based on which consumers will not pay any fee but provide personal information in exchange for the consideration they receive. The proposed text of the implemented Omnibus Directive specifically states that its provisions will also apply to contracts under which the entrepreneur undertook to supply or supplied the digital content not supplied on physical media, or digital services, and the consumer undertook to make available or made available their personal data to the entrepreneur, except where such personal data are processed by the entrepreneur exclusively for the purposes explicitly indicated in the Act on Consumer Rights. As a consequence of the aforementioned changes, the Omnibus Directive also introduces provisions governing the effects of withdrawal from a contract “paid-up” with personal data.

The Omnibus Directive also defines obligations on the part of the entrepreneur with respect to the content other than personal data created or provided by the consumer in the course of using the digital content or digital services provided by the entrepreneur. The entrepreneur will be obliged to refrain from using such personal data, except in situations explicitly specified in the Act.

Another group of provisions introduced by the Omnibus Directive are those designed to provide greater transparency in B2C on-line trading. Entrepreneurs will be required to inform about the individual price adjustments based on automated decision-making if the entrepreneur uses such processes. Additionally, the definitions of on-line trading platform and on-line trading platform provider will be introduced. A number of information obligations will be imposed on these providers to inform the consumer in a clear and comprehensible manner at the latest at the time they express their will to be bound by the remote contract concerning:

• general information, made available in a special part of the web interface, which is directly and easily accessible from the website where the offers are presented, concerning the main parameters that determine the placement of the offers presented to the consumer as a result of the search (the very definition of “placement” will be included in the amended Act of 23 August 2007 on Combating Unfair Commercial Practices)
• information on whether the third-party offering goods, services or digital content on the on-line trading platform is the entrepreneur, based on a declaration made by that person to the on-line trading platform provider
• failure to apply consumer protection legislation to a contract concluded on the on-line trading platform if the party to the contract offering the goods, services or digital content is not the entrepreneur
• division of obligations in relation to the contract concluded by the consumer through the on-line trading platform, between a third-party offering goods, services or digital content and the on-line trading platform provider.

The implementation of the Omnibus Directive will also involve amendments to the Act of 23 August 2007 on Combating Unfair Commercial Practices. In addition to the definition-related issues, it is important to add a new type of misleading actions concerning the marketing of goods in one or more Member States, which are identical to the goods marketed in other Member States, where such goods materially differ in their composition or properties. The catalog of relevant information in the context of misleading omissions was expanded by including:

• method of payment, delivery or performance
• information on whether the third-party offering goods, services or digital content on the on-line trading platform is the entrepreneur, based on a declaration made by that person to the on-line trading platform provider
• in the case of the entrepreneur who provides access to consumer reviews of products, information on whether and how the entrepreneur ensures that the published reviews come from consumers who have actually used or purchased a given product
• general information made available in a dedicated part of the web interface, which is directly and easily accessible from the page on which the search results are presented, concerning the main parameters determining the placement of the products presented to the consumer as a result of the search, and the relative significance of such parameters compared to other parameters

As part of the amendment to the Act on Combating Unfair Commercial Practices, the following was added to the blacklist of unfair market practices in all circumstances:

• search results provided in response to the Internet search by the consumer without explicitly disclosing paid advertising or payments made specifically to obtain higher product placement within the search results
• resale of tickets for any cultural or sporting events to consumers if the entrepreneur has acquired them using software that makes it possible to circumvent technical measures or exceed technical limits imposed by the original seller in order to circumvent restrictions on the number of tickets that a person can buy or other rules that apply to the purchase of tickets
• claim by the entrepreneur who provides access to consumer reviews of products that the product reviews have been posted by consumers who have used or purchased the product, without having taken reasonable and proportionate steps to verify whether such reviews are actually valid
• publication or order of publication by another person of false consumer opinions or recommendations or distorting or causing another person to distort consumer opinions or recommendations, for the purpose of promoting products