The legal regulation of cookies, i.e. small files stored on the computers of website visitors, has undergone quite significant changes in recent years and has become a much-discussed topic. Countless articles and posts have been written about what legislative changes we have adopted and what their effects are. But what effect do these files have on the advertising industry and the publicity of lawyers?
Evaluation of the new legal regulation of cookies
The last significant change in cookie management is the amendment[1] of the Electronic Communications Act (hereinafter referred to as "ZEK"), which introduced the opt-in principle more than a year ago and therefore the necessity of the user's active consent to the use of cookies, with the exception of those that are necessary for the operation of the website. So let's evaluate its practical effects.
From the point of view of website operators, it is possible to recognize, without a consistent effort for the completeness of the list, at least 3 ways Dealing with the new legal regulation of cookies in ZEK.
To the first group we rank those who have not yet noticed the new legislation - these are usually operators of websites created to order, rather smaller and commercially neutral. These websites did not make much use of cookies even before the amendment, and thus often come into legal conflict if they deploy analytical tools.
The second large group are operators of websites built on integrated platforms such as WordPress, who were motivated by these platforms to modify their pages and applied a ready-made solution in the form of an update of an add-on, which reacts in varying degrees of detail, but generally comprehensively, to the individual components of the website and automatically generates the request to approve cookies. As users of this website, we can imagine this as a so-called cookie prompt that prompts us to grant one-time consent.
The third group includes rather big players on the Internet business market, who are consistently aware of the value of information about their potential or existing customers and have a sophisticated solution for dealing with cookies on their websites, including detailed principles for processing personal data so that it is possible to maximize the informational value of this data, both from an analytical point of view , from the point of view of targeting any advertising, i.e. so-called remarketing.
Possibilities of the lawyer's presentation
Now let's take a look at the effects of cookie editing in connection with the lawyer's presentation. In addition to general legal regulations, the status of a lawyer is also bound by the third part of the Code of Ethics[2], which sets the basic barriers for the presentation of lawyers, up to the individual disciplinary decisions of the ČAK disciplinary commission, which interpret the overall framework, e.g. from the point of view of caring for the dignity of the legal profession.
We are working here with two very similar terms, viz publicity and advertising. Lawyer publicity is generally welcomed, while advertising is strictly regulated, even in this field there has been significant relaxation in the past.
Lawyers' publicity is generally accepted mainly in a professional form, i.e. direct publishing activity, and in the traditional way of awarding various awards, publishing rankings and similar evaluations, which are intended to direct the impartial observer and potential client with the guidance of professionalism and the quality of the services provided.
Advertising, on the other hand, is perceived rather negatively from the status perspective. Although we have moved away from the historical practice of allowing advertising only for the purpose of informing about the opening, or office relocations, have already moved considerably, the ability of lawyers to advertise their services is still subject to considerable restrictions, for many legitimate reasons. As a summary of this approach, it can be stated that advertising in advocacy is generally tolerated if it is not deceptive and if it respects the obligation of confidentiality and other basic values of advocacy[3]. Crucial in this context is the fact that that any service offer is possible only to clients who have requested such an offer themselves[4]. It is therefore accepted to inform about the provided legal services in general, but no longer to offer the provision of legal services of a certain type to a specific entity.
Address remarketing in advocacy
If these two thematic areas, i.e. marketing and the regulation of the lawyer's publicity, intersect, the lawyer is confronted with a competitive environment on the legal services market, in which he has a number of tools at his disposal for the purposes of his visibility, and their use must be considered within the specific legal framework of advertising regulation in advocacy. One such tool is precisely the possibility of targeted promotion and building the good name of the lawyer and/or his office with the use of advertising cookies.
As already mentioned above, the publicity of a lawyer is generally allowed in Article 25 of the Code of Ethics, which states that: "the lawyer has the right to inform the public about the services provided, provided that this information is accurate, not misleading and respects the duty of confidentiality and other basic values of advocacy." The corrective is the provision of Article 31 of the Code of Ethics, from which it follows that: "a lawyer may not offer to provide legal services to a person who does not request it himself, unless it is a person with whom he interacts privately or in the practice of law... When offering his legal services, a lawyer must refrain from any kind of insistence, especially if it is due to circumstances or expression it is obvious to the person to whom the service is offered that he is not interested in it."
It is clear from the above that a flat form of advertising that is not deceptive and also meets the other mentioned requirements is permissible. However, it is also very expensive and ineffective. The stated provisions of Article 31 of the Code of Ethics can, however, be interpreted as follows, taking into account the technical nature of the functioning of cookies and their anonymous processing and use[5], that advertising targeting, or presentations of the lawyer and his services allow. Although in the cited article it is forbidden to offer the provision of legal services to a person who does not request it himself, this provision cannot be interpreted so restrictively that, as a result, it contradicts Article 25 of the Code of Ethics and thus makes the presentation of a lawyer completely impossible. Even during remarketing (retargeting), visitor data is so anonymized that it is not possible to talk about the targeted offering of legal services to specific entities in violation of their request, and the website operator itself, or the customer of advertising through specific advertising services usually cannot target his advertising to specific entities - website visitors, but is only able to determine by type the defined groups of visitors to whom the advertisement should be displayed. This degree of indeterminacy appears to be sufficient to comply with the requirements of the status regulations governing the attorney's permitted publicity.
However, there are also interpretations that interpret expressing consent to the storage of marketing cookies as an act of the visitor by which he expressly agrees to advertising targeting, and at the same time it is presumed from his visit to the lawyer's web presentation that he is looking for legal services. If this interpretation is accepted, it would be possible to address the visitor with an offer to provide legal services specifically and directly, albeit with respect to all other restrictions mentioned above. One can hardly identify with such an interpretation as too ambitious and insufficiently respectful of his private sphere. It is everyone's right to move freely on the Internet as a public virtual space, and it is not possible to presume any interest or demand from such a presence of a specific visitor.
The CAK Disciplinary Commission has already dealt with a similar issue[6] in the case of disciplinary action against the accused, who sent out her offer of legal services to several specific real estate agencies without them requesting the offer. This action was evaluated by the Appeals Disciplinary Board of the ČAK Disciplinary Commission as a misconduct, as the offer was not addressed to the public, not specifically specified, as much as it was addressed to specific entities, even though their selection could be determined by type. In the past, other cases of direct offers of legal services, such as handing out business cards by a lawyer, were also evaluated as disciplinary offences.
From the above, it is clear that even the mailing of even general offers of legal services, e.g. via unsolicited mass e-mails (except, of course, e.g. newsletters, where the express consent of the addressee is required) is already sufficiently addressed and therefore in violation of the rules of professional ethics even if contacts with existing or potential customers processed in accordance with the legal regulation of personal data protection would be used for this step, but for a different purpose. It remains an unanswered question how the data from the aforementioned services can be meaningfully used to find the contact details of specific visitors to the lawyer's web presentation through consent to the storage of advertising cookies. In any case, if the lawyer decides on such a form of addressing visitors to his website, in our opinion a necessary condition for this (not necessarily a sufficient condition) will be a clear presentation of this option towards website visitors in the form of an appropriate wording of warnings regarding the collection of so-called analytical and marketing cookies.
záver
Of course, the advertising industry does not avoid developments in technology. It enables increasingly sophisticated ways of approaching potential customers, within the legislative framework regulating this area. However, some marketing methods can be evaluated as very aggressive, in some places even on the edge of the law. At the same time, however, it is necessary to take into account the fact that the practice of advocacy is in many aspects a business with a highly competitive market and that even lawyers should not be excluded from the possibility of participating in the competition, of course while emphasizing the traditional values of advocacy.
Source: epravo.cz
Mgr. Vladimír Nováček, attorney
JUDr. Ing. Jan Vych, attorney and partner
[1] Act No. 374/2021 Coll., amending Act No. 127/2005 Coll., on electronic communications and amending some related laws (Electronic Communications Act), as amended, and some other laws
[2] resolution of the Board of Directors of the Czech Bar Association No. 1/1997 of the Journal, which establishes the rules of professional ethics and the rules of the competition of lawyers of the Czech Republic, as amended
[3] Article 25 of the Code of Ethics
[4] Art. 31 of the Code of Ethics
[5] The authors are aware that the interpretation of the above-mentioned provisions, whether linguistic or, for example, teleological, can be provided authoritatively in each specific case only by the CAK disciplinary commission, or in the final instance the court.
[6] disciplinary decision of the Disciplinary Board of Appeal of the Disciplinary Commission ČAK sp. stamp K 84/04 dated 12 March 3
