The Technology, Media and Telecommunications Review: Poland
According to market research, in 2019 the value of the telecommunications market in Poland reached 39.6 billion złotys, which is an increase of 400 million złotys on the previous year.2 The value of investments in the telecommunications sector in 2019 is 7.8 billion złotys.3 The Polish telecommunications sector is likely to see further growth in 2020 because the covid-19 pandemic has changed the way the public thinks about internet access as a result of its increasing necessity for remote work or online schooling. Therefore, in the following year, we can expect a radical increase in the rate of use of internet access services with speeds of at least 100 Mb/s.4 It is therefore important to stimulate demand for high-capacity internet access services.
In 2020, the implementation of 5G technology in Poland is still an important topic, but it has been overshadowed by other challenges resulting from the ongoing covid-19 pandemic and changes following the deadlines for implementation of EU acts, for example, the Ministry of Digital Affairs is currently working on the implementation of the European Electronic Communications Code (EECC)5 of 11 December 2018 in Poland (see Section II). This will be adopted in two legal acts – the Electronic Communications Law (ECL) (which will replace the Telecommunications Law) and the Act implementing the ECL). Both are currently at the legislative stage and their final form may change.
From the very beginning it is also worth noting that on 14 September 2020, the draft bill implementing the AVMS Directive 2018/18086 into Polish law was officially announced and submitted for public consultation.7 According to government plans, the law is expected to be passed in quarter 4 of 2020 (in spite of the deadline set by the directive of 29 September 2020).
i The regulators
One of the most important regulatory authorities of the ICT sector in Poland is the President of the Office of Electronic Communications (the President of UKE), which is the regulatory authority for telecommunications, postal activities and the management of frequency resources. The detailed competences of the President of UKE are spread over several legal acts, including the TL (which will be replaced by the ECL – see below) and the Act on Support for the Development of Telecommunications Services and Networks (the Mega Act).
Another very important regulatory body is the National Broadcasting Council, whose competences are regulated by the Broadcasting Act. In accordance with Article 6(1) of the Broadcasting Act, the National Council shall safeguard freedom of speech in radio and television broadcasting, protect the independence of media service providers and the interests of the public, as well as ensuring an open and pluralistic nature of radio and television broadcasting.
The President of the Office of Competition and Consumer Protection (the President of UOKiK) is responsible for shaping antitrust and consumer protection policies, as well as providing opinions on state aid projects. The President of UKE shall cooperate with the President of UOKiK on issues concerning the observance of rights of entities using postal and telecommunications services, counteracting competition-limiting practices and anticompetitive concentrations of postal operators, telecommunications undertakings and their associations (Article 192(1) point 14 of the TL).
The President of the Office of the Personal Data Protection (the President of UODO) is a supervisory authority within the meaning of Regulation 2016/679 and Directive 2016/680 of the European Parliament and of the Council of 27 April 2016 (the Police Directive). The President of the UODO controls the performance of the provider of publicly available telecommunications services when carrying out the following duties: ensuring by the provider of publicly available telecommunications services adequate technical and organisational protection measures ensuring security of personal data processing (Article 1741 of the TL), notification of personal data breach (Article 174a of the TL) and keeping a register of personal data breach (Article 174d of the TL).
ii Main sources of law
At the national level, the activity of the ICT sector is regulated mainly by the following legal acts: the Act of 16 July 2004 on TL, the Act of 7 May 2010 on supporting the development of telecommunications services and networks, the Act of 29 December 1992 on radio and television broadcasting (the Broadcasting Act) and the Act of 18 July 2002 on providing services by electronic means.
The ECL will comprehensively regulate, among other things, the performance of activities consisting of the provision of electronic communications services, regulation of electronic communications markets, provision of access, conditions for the management of frequencies, orbital resources and numbering resources, as well as the rights and obligations of users, rules for the processing of telecommunications data and the protection of electronic communications secrets. So far these issues have been regulated by the TL, which will be replaced by the ECL. Currently, we can only base our analysis on the draft of 29 July 2020.8 Throughout the rest of this chapter, we will refer primarily to the current TL, pointing out the differences there will be with the EEC following the implementation of the ECL. The new regulation will represent a significant change for the number-independent interpersonal communications services such as email or internet messenger services.
It is also worth mentioning the following regulations: the Act of 18 July 2002 on the provision of services by electronic means, the Act of 5 July 2018 on the National Cyber-Security System, the Act of 10 June 2016 on counterterrorist activities (and other acts concerning particular uniformed services, e.g., police or intelligence agencies), the Act of 16 February 2007 on competition and consumer protection (ACCP) and the Act of 10 May 2018 on personal data protection.
Owing to the specific nature of the ICT sector, legal regulations concerning particular sectors (e.g., public, finance or healthcare) may also be of great importance. First of all, it is worth noting the financial (banking) sector, which is regulated in a number of legal acts, for example by the Act of 29 August 1997 on Banking Law and the Act of 19 August 2011 on Payment Services. However, the above-mentioned issues fall beyond the scope of this chapter.
iii Regulated activities
Telecommunications activities, in principle, do not require a licence. The telecommunications activities that constitute business activities shall be the regulated activities and shall be subject to entry in the register of telecommunications undertaking (Article 10(1) of the TL). An entrepreneur may perform telecommunications activity if they meet the conditions specified in the provisions of the TL and after obtaining an entry in the above-mentioned register. The above obligations apply to entities providing services via public and non-public telecommunications networks. This has been regulated similarly by the ECL (Article 5).
Pursuant to Article 209(1) point 2) of the TL, a fine may be imposed on an entrepreneur for performing telecommunications activity in the scope not covered by the application for entry in the register, and pursuant to Article 209(2), a fine may be imposed on the operator of a telecommunications undertaking for such infringement. This fine is also included in Article 409 of the ECL.
The TL provides a form similar to a licence for a system of frequency (spectrum) and numbering resource management. The manner of frequency management is specified in Article 111 et seq. of the TL (Article 64 et seq. of the ECL). In this respect, the most important are the provisions on frequency reservations or decisions that grant the right to dispose of frequencies or orbital resources (Article 114 of the TL and Article 72 of the ECL).
In the absence of sufficient frequency resources, entities to which a general exclusive frequency licence is granted shall be appointed by means of a contest, a tender or an auction (Article 116(1) of the TL and Article 99(3) of the ECL). An entity that has received the right to use a frequency subject to a general exclusive frequency licence shall pay annual fees for the right to use this frequency (Article 185(1) of the TL and Article 99(3) of the ECL).
Additionally, under the TL, the use of radio equipment requires a radio licence issued by the President of UKE by way of a decision (Article 143 of the TL and Article 122 of the ECL).
iv Ownership and market access restrictions
Polish law does not, as a rule, provide for any obstacles to conducting business activity in the territory of the Republic of Poland by a foreign entity (person). Telecommunications activities conducted by a telecommunications undertaking from a Member State or a state that has concluded with the European Union and its Member States an agreement on the freedom to provide services and that temporarily provides services in the territory of the Republic of Poland under the terms and conditions specified in the provisions of the Treaty establishing the European Community, Agreement on the European Economic Area or in the provisions of another agreement regulating the freedom to provide services, as appropriate, shall be also subject to entry in the register of telecommunications undertaking (Article 10(1) of the TL and Article 5 of the ECL). An operator from the Member State applying for telecommunications access shall not be obliged to make an entry in the register referred to in Article 10 (Article 5 of the ECL), provided that it does not perform telecommunications activities in the territory of the Republic of Poland (Article 26(4) of the TL and Article 149(3) of the ECL).
The President of UKE may specify in the frequency reservations process a limitation of the use of the frequencies covered by the reservation where the introduction of such limitation is justified by the necessity to achieve a public interest objective (e.g., in terms of supporting social, regional or territorial cohesion and promoting cultural and linguistic diversity and media pluralism (Article 1151(1) point 6) letter b) and d) of the TL and Article 83(1) point 6) letters b) and d) of the ECL)).
The TL provides restrictions on participation in a tender or auction for frequency reservations (Article 118(4a) and (4b) of the TL and Article 108 of the ECL). The President of UKE, when defining the conditions of participation in a tender or auction, may in particular indicate the resources that disposal excludes or entitles to participate in the tender (auction), and also limits the frequency resources for which reservation may be applied for by a given entity (Article 118(4a) of the TL and Article 108(1) of the ECL). Moreover, the President of UKE may provide further restrictions regarding financial credibility, experience in telecommunication activities or the fact that only one entity from a given capital group may participate in a tender, auction or competition.
The above-mentioned restrictions are related to further regulations of the TL concerning the conditions of competition (Article 118a(1) point 1 of the TL and Article 112 of the ECL). Additionally, the President of UKE in consultation with the President of the Office for Competition and Consumer Protection may, by way of a decision, refuse a general exclusive frequency licence for a subsequent period, if justified by the need to ensure effective frequency usage, in particular in a situation where granting a general exclusive frequency licence for a subsequent period could lead to spectrum hoarding by a given entity or a capital group, involving that entity (Article 116(9) of the TL and Article 87(2) of the ECL). Reservation of frequencies may also be refused in the cases set out in Paragraphs 9a and 9b (Article 87(3)(4) of the ECL) relating to the need to increase significantly the efficiency of frequency use or to circumstances giving rise to a threat to national defence, security or safety and public order. With respect to Article 118a(1) point 1 and Article 116(9) of the TL (respectively, Articles 112 and 87(2) of the ECL), the President of UKE shall consult the President of UOKiK.
In addition, Article 21 et seq. of the TL (Article 176 et seq. of the ECL) defines the powers of the President of UKE to regulate the telecommunications market. After conducting proceedings (market analysis), the President of UKE, if it is established that a telecommunications undertaking with significant market power or telecommunications undertakings with collective significant market power exist on the relevant market, issues a decision in which it identifies the relevant market, identifies the undertaking or undertakings with significant market power and decides on the regulatory obligations of such undertakings.
Moreover, telecommunications undertakings, while negotiating the provisions of a telecommunications access agreement, shall take account of obligations imposed on them in accordance with Article 26 et seq. of the TL (Article 190 et seq. of the ECL), for example, concerning technical or operational conditions of access (Article 35 of the TL) or equal treatment of telecommunications undertakings (Article 36 of the TL). The above issue is subject to some modifications in the ECL. Article 191 of the ECL is an implementation of Article 73 seq. 2 and 3 of the EECC and establishes that the President of the UKE will determine the conditions of access, reiterating the existing Article 35 of the TL. The EECC expands the catalogue of elements which the authority takes into account when determining the scope of the access obligation. In respect of Article 36 of the TL, it is repeated in Article 192 of the ECL and extending the catalogue of obliged entities, because EECC refers to the obligation of the company and not only the operator. The President of UKE may also by way of a decision impose an obligation to prepare and present a draft reference offer on telecommunications access, the degree of detail of which will be specified in the decision (Article 42 of the TL), which is approved by the President under the procedure set out in Article 43 of the TL. The equivalent of Articles 42 and 43 of the TL on the grounds of the ECL are Articles 199 and 200 of this Act. The draft Article 199 repeats the existing regulation of the Telecommunications Act in this area, taking into account the changes resulting from the EECC. The main change resulting from the EECC is lack of elements that should be included in the framework offer.
In addition, a vertically integrated telecommunications undertaking with significant market power, in order to ensure that all service providers providing their services to end users, including itself, have the possibility to offer equivalent services to end users, shall inform the President of UKE of its intended transfer of local access network assets or a substantial part thereof to a separate legal entity under different ownership or to a newly established entity (Article 44g(1) of the TL and Article 208(1) of the ECL). As a result of the notification, the President of UKE, based on the results of market analysis, conducts proceedings and imposes, maintains, changes or repeals regulatory obligations.
v Transfers of control and assignments
The issue of changing the entity that holds the frequency reservation is regulated in Articles 122 and 1221 of the TL. In accordance with the latest amendment to the TL, analogue TV was deleted from the scope of Article 122 as a result of the switch-off of analogue television broadcasting and the lack of reservation for analogue TV.9 With the exception of frequency reservations, for the purpose of broadcasting radio programmes in an analogue manner, the President of UKE changes the entity holding the frequency reservation if the entity holding the rights and obligations and the frequency agree to transfer the rights and obligations and the entity indicated in the application meets the requirements specified in the Act. The President of UKE shall change an entity holding a general exclusive frequency licence granted by means of a tender, an auction or a contest having sought an opinion of the President of UOKiK with respect to a competitive situation (Article 122(5) of the TL). The President of UKE shall take a decision to change an entity holding a general exclusive frequency licence for the purposes of digital broadcasting or rebroadcasting of radio or television programmes in agreement with the Chairperson of KRRiT (Article 122(6) of the TL).
The equivalent of Articles 122 and 1221 of the TL are Articles 90 and 91 in the ECL. These regulations are not exact copies. The proposed changes arise mainly from the implementation of Article 51 of the EECC.
Regardless of the regulations of the TL, the issue of counteracting anticompetitive concentrations of undertakings and their associations is also regulated by the Act on Competition and Consumer Protection. The intention of concentration is subject to notification to the President of UOKiK if the entrepreneurs participating in the concentration meet requirements set in Article 13(1) of the ACCP. Article 14 of the ACCP establishes a closed list of cases to which the obligation to notify the intention of concentration referred to in Article 13(1) does not apply. The statutory exemption from the notification obligation covers, for example, 'bagatelle' (small matter) concentrations and concentrations of undertakings belonging to the same capital group. The process of issuing a decision on a concentration is regulated by Article 18 et seq. of the ACCP. Special regulations concerning the proceedings on concentration are regulated by the provisions of Article 94 et seq. of the ACCP.
Antimonopoly proceedings in concentration cases should be terminated not later than within one month from their institution (Article 96 of the ACCP). However, this time may be extended due to circumstances extraneous to the President of UOKiK (Article 96(2) of the ACCP) and complicated cases (Article 96a of the ACCP).
Telecommunications & internet access
i Internet and internet protocol regulation
The Telecommunications Act is a comprehensive regulation concerning the principles of performance and control of activities consisting in the provision of telecommunications services, the provision of telecommunications networks or associated facilities (Article 1(1) point 1) of the TL). Telecommunications services using the internet and based on IP address are subject to the regulations of the TL to the same extent as other services. For the application of the TL, it will not matter whether a given entity provides services by means of one's own network, another operator's network or selling on one's own behalf and on one's own account a telecommunications service performed by another service provider (Article 2(1) point 41) of the TL). Therefore, the above-mentioned services are regulated in a manner similar to traditional telephony. This will not change under the ECL, despite its application also to number-independent interpersonal services.
ii Universal service
The TL defines 'universal service' as a set of telecommunications services, including facilities for the disabled, provided in any technology, preserving good quality and at a reasonable price, which should be available in the territory of the Republic of Poland (Article 81(1) of the TL). Currently, the set of universal services includes connection of network termination in a fixed location enabling voice, fax and data transmission, including functional access to the internet, the speed of which enables the use of applications commonly used in minor current matters of everyday life, in particular the use of electronic mail or applications enabling making payments (Article 81(3)(1) of the TL).
Currently, the set of universal services includes connection of a network termination point at a fixed location, capable of supporting voice, facsimile and data communications, including functional internet access at rates supporting the use of common applications to handle current daily life matters, in particular using electronic mail or applications that support payments (Article 81(3) point 1) of the TL).
Among the regulations designed in the ECL, one of the biggest and most important changes will be the one in the area of universal service regulation. Universal service is regulated in Article 314 et seq. of the ECL. The new universal service will consist of an 'adequate broadband internet access service' and a 'voice communication service'. Neither the EECC nor the ECL directly determine what the bandwidth required for such a link will be – this must be determined by each Member State individually, according to national circumstances. These services will be targeted at consumers 'on low incomes or with special social needs'. The President of the UKE, when appointing an entrepreneur or entrepreneurs to provide these services, will in both cases carry out appropriate analyses. The surcharge to the services costs will not be available to all potentially obliged entrepreneurs, but only for the 'designated' one. The imposition of the obligation to offer special social packages is additionally connected with certain restrictions in concluding and terminating contracts with subscribers.
iii Restrictions on the provision of service
The price of services may be regulated within the scope of the reference offer. The President of UKE may, by way of a decision, impose on an operator with significant market power an obligation to prepare and submit within a specific time limit a draft telecommunications access reference offer, the level of detail of which shall be specified in a decision (Article 42(1) of the TL and Article 199 of the ECL). An operator on whom the obligation was imposed shall conclude telecommunications access agreements under the terms that are not worse for other parties to the agreement than those in the approved offer or determined by the President of UKE (Article 43(6) of the TL and Article 200(7) of the ECL).
Telecommunications law, in principle, does not regulate the rights of a telecommunications operator to restrict or favour network access on the basis of content. The President of UKE may order the blocking of access to numbers or services where this is justified by the protection of end users against abuse of the telecommunications network (Article 79b of the TL and Article 307 of the ECL). As a rule, a telecommunications undertaking cannot control the content, applications and services to which its users have access.
The President of UKE may, by way of a decision, impose an obligation on an operator with significant market power to take into account justified requests of telecommunications undertakings to provide them with telecommunications access, including the use of network elements and associated facilities, in particular taking into account the level of competitiveness of the retail market and the interest of end users (Article 34 of the TL and Article 199 of the ECL). Moreover, the President of UKE may also impose, by way of a decision, an obligation to treat telecommunications undertakings equally as regards telecommunications access (Article 36 of the TL and Article 192 of the ECL).
Additionally, the TL also provides for a number of requirements concerning the contract for the provision of telecommunications services, for example, concerning a form (Article 56(2) of the TL), the elements it should contain (Article 56(3) of the TL) A similar regulation is provided for in Article 252 of the ECL. The ECL clarifies the important requirement indicated in the given article shall be included in a single document. Pre-contractual information and a concise summary of the contract terms and conditions are also an integral part of the contract concluded with the consumer. The ECL also includes further regulations in this area (Article 253 et seq. of the ECL). The Polish legislator is showing some inconsistency during the process of the EECC implementation. While working on the ECL, the parliament amended the TL by adding Articles 56(1)–56(3) on termination, automatic extension and informing the subscriber of the most advantageous tariff packages offered.
Further requirements concern terms and conditions (Article 57 of the TL and Article 262 of the ECL) and the possibility to change or terminate its terms and conditions (Article 60a of the TL and Article 270 of the ECL).
The Law also contains legal requirements for the regulations of provided services (Articles 59 and 60 of the TL and Article 254 of the ECL).
With regard to the limitation of unsolicited transfers via terminal equipment (telephones, faxes, emails or SMS), the TL makes their use conditional on the prior consent of the subscriber or user (Article 172 of the TL and Article 360 of the ECL). The provisions on the protection of personal data apply to obtaining the consent of a subscriber or end user (Article 174 of the TL and Article 362 of the ECL). The provisions of Article 360 of the ECL provide for the protection of end users against harassment in connection with direct marketing or transmission of unsolicited commercial information. The provisions will replace the binding regulations of Article 10 of the Act of 18 July 2002 on the provision of electronic services (Journal of Laws of 2020, item 344) and Article 172 of the TL.
iv Privacy and data security
A telecommunications entrepreneur is obliged to perform tasks and duties for the benefit of defence, state security and public security and order within the scope and under the conditions specified in the TL and other acts. Obligations in this respect are regulated by the provisions of Article 176 et seq. of the TL (Article 50 et seq. of the ECL).
Pursuant to Article 179(3) point 1) of the TL (Article 51(1) of the ECL), a telecommunications undertaking is obliged to ensure technical and organisational conditions for access and recording of telecommunications transmissions (transmitted or received by the end user) or telecommunications terminal equipment and data held by the undertaking in connection with telecommunications transmissions for the needs of specific services (e.g., the Internal Security Agency or the Border Guard).
Additionally, a telecommunications undertaking is obliged to fulfil their duties in the scope of data retention (Article 180a–180c of the TL and Articles 55–56 of the ECL). These duties refer to data generated in a telecommunications network or processed by a telecommunications undertaking. It is worth mentioning that security and defence obligations are also included in other legal acts.
According to the regulations of the TL, the provider of publicly available telecommunications services is obliged to implement appropriate technical and organisational protection measures to ensure the security of personal data processing (Article 1741 of the TL and Article 363 of the ECL). The provider of publicly available telecommunications services notifies the President of UODO about a breach of personal data (Article 174a(1) of the TL and Article 364 of ECL) no later than 24 hours after the detection of the personal data breach. If not all the required information is known within this period, the supplier shall send an initial notification within 24 hours and a second notification as soon as possible and at the latest within three days after the initial notification. If this deadline cannot be met, the supplier shall provide the information available to them within three days and explain the reason for the delay in providing the other information (Article 2 of the Commission Regulation (EU) No. 611/2013 of 24 June 2013).10 The provisions of the Act of 10 May 2018 on the Protection of Personal Data shall apply accordingly to the control exercised by the President of the Office for Personal Data Protection over the performance of obligations by the provider of publicly available telecommunications services. The TL imposes on the provider of publicly available telecommunications services the obligation to maintain a register of personal data infringements, including facts accompanying the infringements, their effects and actions taken (Article 174d of the TL and Article 367 of the ECL).
Additionally, in early September 2020, the Ministry of Digital Affairs submitted for public consultation a Draft Act amending the National Cyber Security System Act and the Public Procurement Law.11 New obligations will be imposed on electronic communication entrepreneurs by Articles 20a–20f of the National Cyber Security System Act and the draft has met with widespread criticism.
According to the strategy of the President of UKE for the years 2017–2021,12 one of its key areas of activity is making frequencies in the 700MHz band available for broadband systems.
The President of UKE is working to support legal solutions improving the efficiency of radio spectrum management. In this respect, such actions as streamlining the selection procedure, determining the manner of band allocation and preparation of the selection procedure and updating the National Table of Frequency Allocations in terms of changes were introduced at the World Radiocommunication Conference.
Moreover, the President of UKE is pursuing the objectives of changing frequency use, including agreeing new TV channels below the 700MHz band, updating frequency management in the 700MHz and 470–694MHz bands, reconfiguring TV channels, migrating TV services to the 470–694MHz band and changing DVB-T technology to DVB-T2.
There have also been actions taken to implement 5G technology in Poland. In addition to the amendment to the Act supporting the development of telecommunications services and networks, the President of UKE also undertakes other activities, such as taking steps to increase frequency use efficiency through the development of implementation concepts, refarming and optimisation of frequency resources. In addition, the President of UKE envisages active participation in the work of the International Telecommunication Union, the European Conference of Postal and Telecommunications Administrations and groups operating within the EU (the Radio Spectrum Committee, the Radio Spectrum Policy Group and the Communications Committee).
ii Flexible spectrum use
The TL provides for the lease or transfer of frequencies for use. Article 1221 of the TL (Article 91 of the ECL) provides that an entity holding a general exclusive frequency licence may lease the frequencies covered by the licence or transfer them for use under another legal title to another entity.
An entity to whom a general exclusive frequency licence was granted shall notify the President of UKE, and with respect to the frequencies intended for broadcasting or rebroadcasting of radio or television programmes also the Chairperson of KRRIT, of the frequencies leased or transferred for use, not later than within 14 days of the date of concluding an agreement (Article 1221(2) of the TL and Article 91(2) of the ECL).
The President of UKE may, by way of a decision, change the conditions for using frequencies or prohibit their use by an entity to which the frequency has been leased or transferred for use, for example, where the use of these frequencies by that entity could lead to distortion of competition (Article 1221(5) point 2) of the TL and Article 91(5) of the ECL).
iii Broadband and next-generation services spectrum use
It is worth pointing out that in 2020, advanced work on auctions of 5G bands was already underway, which were interrupted due to the outbreak of covid-19 and the legislative changes introduced to combat the pandemic. In June 2020, the process of switching digital terrestrial television channels was completed, which freed up the frequencies necessary for the development of 5G technology in Poland. The UKE has already chosen the method of distribution of the first frequencies for 5G networks and will organise an auction for this purpose for four blocks of 80 MHz each. The decision on the 5G auction announcement date has not yet been made.
iv Spectrum auctions and fees
As stated in Article 116(1) of the TL (Article 99(3) of the ECL), in the absence of sufficient frequency resources, entities to which a general exclusive frequency licence is granted shall be appointed by means of a contest, a tender or an auction, governed by Article 118 of the TL (Articles 105–108 of the ECL). The announcement of a tender, an auction or a contest shall be published on the UKE BIP website. An announcement of a tender, an auction and a contest shall specify the subject and scope of a tender, an auction or a contest, participation conditions as well as the criteria for selection of offers (Article 118(2) of the TL and Article 105 of the ECL).
With regard to frequency reservations, the TL provides for the following types of fees: annual frequency management fees (Article 185(1) of the TL and Article 25(1) of the ECL) and a frequency reservation fee (Article 185(4) of the TL and Article 24(6) of the ECL).
For more information, see also Section II.iv.
i Regulation of media distribution generally
The granting of licences for the distribution of television programmes is regulated by the Broadcasting Act. Dissemination of radio and television programmes, with the exception of public radio and television programmes, requires a licence (Article 33(1) of the Broadcasting Act).
The transmission of television programme services exclusively in information and communication technology systems does not require a licence, unless the programme service is to be retransmitted by terrestrial diffusion, satellite or cable networks (Article 33(2) of the Broadcasting Act).
The Broadcasting Act does not provide for the necessity to obtain licences for entities providing on-demand audiovisual media services. However, a number of regulations to apply to the entity (Article 47a et seq. of the Broadcasting Act).
Outside the scope of the Broadcasting Act, there are other types of platforms – the provisions of the Act on the provision of services by electronic means shall apply to them.
On 14 September 2020, the draft bill implementing AVMS Directive 2018/1808 into Polish law was officially announced and submitted for public consultation.13 The draft bill aims to introduce the following amendments and modifications:
- a change in the rules for establishing jurisdiction over media service providers (the proposed changes concern two elements (i.e., clarification of the notion of 'editorial decisions' and clarification of which employees are important in determining jurisdiction of a media service provider);
- provisions on the competences and functioning of the National Broadcasting Council;
- information obligations of media service providers;
- rules for placement of commercial communications in media services;
- regulations concerning the protection of consumers, in particular minors;
- principles of promoting and supporting European creativity by media service providers;
- rules on making on-demand audiovisual media services more accessible to people with disabilities; and
- provisions concerning video-sharing platform services.
ii Internet-delivered video content
Video distribution in IPTV form can be divided into three categories: live web TV, time-shifted TV programmes and video on demand. Services of this type available in Poland are generally chargeable, therefore people who cannot afford to buy them do not have access to the presented content.
Radio programmes and digital terrestrial television (DVB-T) offer channels available to the general public without prior payment. However, Polish law requires relatively small monthly fees for the use of a radio or television receiver.
The Anti-Crisis Shield 3.014 introduced a previously announced amendment to the Cinematography Act. The list of entities obliged to pay a fee to the Polish Film Institute has been extended to include providers of VOD. The new regulation entered into force on 1 July 2020, while the fee itself should be paid on a quarterly basis, within 30 days of the end of the quarter.
The year in review
We will also briefly summarise regulations that may be relevant to the TMT sector.
Throughout the year, work on the sector's key project, the ePrivacy Regulation, was intense but it ultimately remained unfinished. The aim of the regulation is to complement the GDPR regulation on the storage and deletion of data in electronic communication, to increase the transparency of cookies and to reduce unwanted marketing communication. The regulations will apply to telecommunication and internet service providers and parts of OTT entities.
On 17 April 2019, the entry into force of the Directive on Copyright and Related Rights in the Digital Single Market heralded major changes for the internet industry. The biggest controversy surrounded new regulations concerning the use of copyright by providers of online content sharing services, who were obliged to conclude a licence agreement with the copyright holders (Article 17). Providers must prevent the publication of illegal content by taking appropriate measures, such as using content recognition technologies. Controversy has also been generated by new regulations granting traditional press publishers a new type of related copyright in the digital use of their press publications (Article 15).
In 2019, the data protection authorities were very active. In a decision of 15 March 2019, the Polish DPA imposed the first penalty of 943,000 złotys for failing to meet the information obligation resulting from UODO on Bisnode. The decision concerning Morele.net of 10 September 2019 is also noteworthy, since it contained the record-breaking penalty of 2,830,410 złotys.
In the case law, it is worth noting the CJEU judgment on the application of the institution of exhaustion of copyright in relation to e-books (judgment of 19 December 2019, file C 263/18). Additionally, the CJEU judgment of 3 October 2019 (ref. C-18/18) may be of great importance for the internet industry, indicating that a court of an EU Member State may order a hosting provider to remove information stored by the provider, the content of which is identical to that of information previously considered unlawful. Also, we cannot fail to mention the CJEU judgment concerning the lack of necessity of 'global application' of the right to be forgotten by search engine operators (judgment of 24 September 2019, ref. C-507/17).
At the end of 2018, two important directives were passed at the EU level – the Audiovisual Media Services Directive and the European Electronic Communications Code. Both directives will be implemented into national law in 2020.
The first of these directives aims to ensure greater protection of minors from content that may harm their development, to protect the general public from specific content – such as incitement to hatred or child pornography – and to ensure the promotion of European works. Changes will affect, among other things, video-sharing platforms and VOD providers.
The EECC has already partially implemented last year's amendment to the act on supporting the development of telecommunications services and networks, but the key solutions for OTT services will be implemented under the ECL, which is to replace the TL. The biggest change is the inclusion of OTT service providers providing interpersonal communication services in the obligations resulting from the Directive, which so far have mainly concerned telecommunications undertakings.
The icing on the cake of the upcoming changes is Regulation 2019/1150 of the European Parliament and of the Council (EU) aimed at creating fair, transparent and predictable conditions for the operation of internet platforms and search engines on which SMEs offer their services or goods to consumers. The Regulation came into force in July 2020.
Lastly, there was an important legal change in the TMT area that occurred last year. The Act of 13 February 2020 amending the Act – Code of Civil Procedure and certain other acts,15 introduced many revolutionary changes in the scope of pursuing claims resulting from the infringement of intellectual property rights, among other things established specialised intellectual property courts in Poland. The act came into force on 1 July 2020.
Conclusions and outlook
Currently, the correct implementation of the EECC should be a priority for the Polish ICT sector. The public consultation conducted by the Ministry of Digital Affairs on the adoption of the EECC has ended. The entrepreneurs' representatives provided the Ministry with a detailed position in which they strongly emphasise the importance of not regulating issues that go beyond the obligations resulting from the EU directive. The proposals for regulations concerning the processing of 'cookies' and changes in the length of concessions granted to the media constitute a particular threat. A real revolution took place in terms of the form of contracts. The possibility of using many contract templates disappear, including regulations (e.g., general regulations, regulations for additional services, promotion regulations, etc.), and even a price list. From 21 December 2020, all information required by the law will have to be provided to subscribers as part of three documents: contracts, pre-contractual information or contract summaries. Thus, all telecoms face a real challenge to completely change the practice of customer service. Nevertheless, the ECL provides the ICT sector with many more breakthrough changes that will pose a huge challenge for the whole industry.
1 Xawery Konarski is a senior partner and Michal Matysiak is a trainee legal adviser at Traple Konarski Podrecki & Partners.
2 Report on the condition of the telecommunications market in Poland in 2019 published by Office of Electronic Communications – https://www.uke.gov.pl/akt/raport-o-stanie-rynku-telekomunikacyjnego-w-2019-r-,345.html.
3 See above.
4 See above.
5 OJ L 321, 17.12.2018, p. 36–214.
6 OJ L 303, 28.11.2018, p. 69–92.
10 Commission Regulation (EU) No. 611/2013 of 24 June 2013 on the measures applicable to the notification of personal data breaches under Directive 2002/58/EC of the European Parliament and of the Council on privacy and electronic communications – https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX:32013R0611.
14 Act of 14 May 2020 amending certain acts in the field of protective measures in connection with the spread of the SARS-CoV-2 virus (Journal of Laws, 2020 item 875).
15 Journal of Laws of 2020, item 288.