Electronic Communications Law and B2B Prospecting in Poland

Changes in the Electronic Communications Law (ECL), effective in Poland from November 10, 2024, have a direct impact on the B2B prospecting process. The new regulations enhance user privacy protections and impose a range of obligations on companies using electronic communication tools for sales activities, similar to those in Denmark, Germany, Italy, Austria, and the Netherlands. In this article, we outline the key legal changes affecting B2B prospecting and explain the steps that need to be taken to ensure sales activities comply with the new regulations.

B2B Prospecting in Light of New Regulations

Prospecting—actively seeking potential clients—is a key element of any sales strategy. However, it involves processing personal data, which is subject to GDPR and the Electronic Communications Law. In B2B prospecting, processing contact data requires obtaining consent from the recipient, and marketing communication should be conducted based on the legitimate interest of the data controller.

Key Requirements for Consent in B2B Prospecting

To gain consent for further contact in B2B prospecting, several key requirements must be met, focusing on a genuine understanding of the decision-maker’s needs and problems, as well as a responsible approach to communication. Here are some detailed guidelines:

• Understanding the buyer’s problem – Before making contact, ensure you fully understand the challenges the potential client is facing and how this issue impacts them. Tailor your message to their specific situation.
• Precise presentation of the solution – Rather than making general promises, show specifically how your solution helps solve the decision-maker’s problem. Present specific outcomes or improvements that are relevant to their business.
• Building trust – The potential client needs to believe in the value of your proposition. Provide proof of effectiveness (e.g., case studies, testimonials) and demonstrate your experience to build trust.
• Permission for communication – It’s crucial to obtain the buyer’s consent to continue communication. Provide value in every message, giving the decision-maker the option to choose whether they want to continue the conversation.

With an approach focused on understanding and genuine value, prospecting becomes more effective, increasing the chances of success, as the potential client feels that their needs, not just sales targets, are the priority.

Key Changes in the Electronic Communications Law

The new regulations include a requirement for explicit consent for marketing contact. Article 398 of the ECL requires obtaining the recipient’s consent before sending any commercial communication via electronic channels, even in B2B cases. In practice, this means that any electronic message with a commercial purpose, even to a potential business client, requires prior consent.

Under the ECL, consent must be voluntary, specific, informed, and explicit. This means that the user must fully understand what they are consenting to and the content they will receive. In B2B prospecting, it is particularly important to maintain transparency in communication and to clearly inform about the scope of consent, e.g., whether it covers email, SMS, or phone communication.

To effectively manage consents, companies should implement formal procedures that cover various communication channels. Examples include checkboxes in contact forms, activation links, and email confirmations, which can help meet ECL requirements in practice. Additionally, remember the “one channel – one consent” principle, meaning that each form of contact, such as email, SMS, or phone, requires separate consent.

Informing Recipients of Their Rights

According to the new regulations, every entity collecting contact data for prospecting purposes must inform recipients of their rights. These rights include:

• Right of access to data – The recipient can request information about the scope of data processing.
• Right to object and withdraw consent – The recipient can withdraw their consent for commercial communication at any time.
• Right to data erasure – The recipient can request deletion of their data from the company’s database if they have not consented to further data processing.

The information obligation can be fulfilled through clear descriptions on the website, direct messages in emails, or terms on contact forms.

When Can You Communicate Without Consent? Exceptions Under the Law

While the general rule under the Electronic Communications Law is the need for consent, there are situations in which communication with a potential B2B client can occur without consent. This is due to the possibility of using legitimate interest as a legal basis under GDPR, but only in specific circumstances aimed at providing valuable information about a problem or assessing needs, rather than commercial information.

1. Communication to establish business relations
   If the communication concerns a proposal for cooperation between companies that could potentially benefit both parties, it can be considered under legitimate interest. For example, contacting a purchasing or business development person in a B2B company to propose cooperation within the relevant industry may be permissible without prior consent.
2. Contacts from an existing business relationship
   According to Article 6(1)(f) of GDPR, if there has previously been a commercial transaction (e.g., an order or purchase), it is possible to send marketing communication about similar products or services. However, this communication should always give the recipient an option to opt out of further contact.
3. Invitations to industry informational events
   Invitations to educational, informational, or industry events that could benefit the recipient’s business activities can be sent without consent. For example, inviting recipients to a webinar or conference on a relevant industry topic, such as the implementation of the new Electronic Communications Law, is permissible if offered free of charge.
4. Communication directed at general corporate email addresses
   ECL and GDPR allow communication with general addresses such as “[email protected]” or “[email protected],” as these are not assigned to specific individuals. This type of communication is not considered direct advertising to a private individual, so the consent requirement may be omitted as long as the message is relevant to the company’s activities.
5. Follow-up with business contacts obtained at public industry events
   If contact information, such as a business card, was provided during a business meeting, trade show, or conference, follow-up communication may be made on this basis. However, it is essential to ensure that the communication is closely related to the recipient’s business activities and does not go beyond the initiated relationship. According to data protection laws, the information obligation should be fulfilled. It is advisable to thank them in the message for the previous contact at the event and assess whether the recipient is interested in continuing communication.
6. Processing data publicly disclosed by the company
   If a company makes its contact information available for business purposes on a website or in industry directories, contact can be attempted without formal consent, provided the message relates to the recipient’s business activities. For example, contacting a person listed on the website as a purchasing specialist to assess whether the company is experiencing specific market conditions related to its business activities.

Legitimate Interest and B2B Prospecting

In B2B prospecting, processing data on the basis of legitimate interest may be considered, but it requires a balance test to assess whether the company’s interest does not infringe on the rights and freedoms of the individual concerned. If the result of this test is positive, it is possible to process data within B2B prospecting without prior consent, provided that the contact is strictly related to the business activities of potential clients.

Data Processing Policy and Security in the Company

The data controller, or the entity responsible for data processing, should implement appropriate security measures to ensure that personal data is protected against unauthorized access, loss, or destruction. These principles include:

• Technical and organizational measures – including data encryption and access restrictions.
• Regular audits and checks – evaluating compliance with regulations, including ECL compliance.
• Data management policy – including clear guidelines on how marketing consents are processed and how data is stored and deleted upon consent withdrawal.

Preparing for Changes in the Electronic Communications Law

Preparing for changes under the Electronic Communications Law requires companies to review their current data processing processes and communication with clients. Here are steps to implement to ensure full compliance with the new regulations:

1. Review and update databases
   Identify all contact databases used in prospecting, and ensure you have the necessary consents for each form of communication (email, SMS, phone, LinkedIn). If necessary, update or re-obtain consents according to ECL requirements.
2. Customer segmentation and message personalization
   The introduction of new regulations is a good opportunity to organize databases and segment clients. Focus on personalized communication—messages should be tailored to the specific needs and expectations of recipients, which increases effectiveness and reduces the risk of violations.
3. Establish consent management procedures
   Set clear procedures for obtaining and managing consents, including the possibility of easy withdrawal by the user. These procedures should include using checkboxes in online forms, activation links in emails, and opt-out mechanisms.
4. Implement compliance audit tools
   Regular auditing of messages sent to potential clients is key to ensuring compliance with the new regulations. To this end, it is worth using a GPT agent for auditing communication, which automatically checks message content for compliance with the law. The tool available on the dmsales.com platform at https://chatgpt.com/g/g-zlTB70k3z-dmsales-legal-message-audit allows auditing of email, SMS, and LinkedIn messages, ensuring compliance with ECL and minimizing the risk of violations.
5. Training sales and marketing teams
   The new regulations require awareness and knowledge of the legal basis for contacting clients. Invest in training so that the sales and marketing team understands how to conduct prospecting activities in compliance with the law.

Conclusion

Changes in the Electronic Communications Law bring new challenges for companies operating in the B2B sector. To ensure that prospecting activities comply with regulations, it is essential to manage data appropriately, obtain consents, and monitor communication with clients. One solution that can help meet these requirements is the use of professional databases, such as those available on dmsales.com, which are regularly audited and have the appropriate marketing consents.

In addition, when using publicly available data, you can use tools for auditing email, SMS, and LinkedIn messages, which will help you prepare a compliant prospecting message at https://chatgpt.com/g/g-zlTB70k3z-dmsales-legal-message-audit, significantly simplifying the preparation process for upcoming changes, minimizing the risk of violations, and supporting transparent communication with clients.

References:

The following legal provisions and sources were used in creating this article:

• General Data Protection Regulation (GDPR) – Article 6, Section 1(f), regarding data processing based on legitimate interest. GDPR provides the legal framework for personal data protection in the European Union and applies to the processing of personal data in business communication, including B2B prospecting.
  Source link: [Link to the GDPR text]
• Electronic Communications Law – Article 398, which requires obtaining recipient consent before sending marketing communication electronically. This law introduces new obligations regarding privacy protection and electronic communication regulations in Poland.
  Source link: The full text of the ECL in Poland can be found on [Link to the official site].
• Personal Data Protection Act of May 10, 2018 – Provisions supplementing GDPR in the Polish legal system, covering personal data processing, data security, and the responsibilities of data controllers.
  Source link: The full text can be found on [Link to the official site].