The problem of understanding the term read only data media in banking activity in Poland

The development of electronic banking allows banks to create new opportunities for contact with the customers. However, the bank contacts the customer only when it is necessary, for example, to provide the customer with the information on the changes in costs, fees, commissions. It is required that the bank shall then use read only data media. Paweł Dyrduł, associate lawyer from the Polish law firm KG Legal Kiełtyka Gładkowski based in Krakow, discusses the problem of the interpretation of the term “read only data media”.

The obligation of using a read only data media

The obligation imposed on banks to use read only data media when providing information to a customer about a given product or service is not an idea of the Polish legislator. The European Parliament together with the Council in Directive 2008/48/EC of 23 April 2008 on credit agreements for consumers and repealing Council Directive 87/102/EEC in Art. 3 point m defined the concept of read only data media. A read only data media will be understood as a device that allows the consumer to store information personally addressed to him in a way that gives him or her access to the information in the future for a period suitable for the purposes for which this information is used and which allows the stored information to be kept unchanged. The definition of a read only data media in the Polish law is contained in the Act of 12 May 2011 on Consumer Credit (art. 5 point 17). The Polish legislator adopted an analogous understanding of a read only data media as the European legislator. The only extension of the definition is the addition of the word “material”, therefore in the Polish law, read only data media is a material or device that is meant to store readable information provided to the consumer by the bank.

Read only data media

After analysing the above definitions – both European and Polish ones – attention should be paid to the characteristics that the material or device must have in order to be interpreted as a read only data media. This is quite a big problem for banks in the context of deciding which channels of communication need to be used when communicating with the client in order to comply with the obligation to properly transfer the information. Above all, a read only data media can only be a material or device. Another feature that stands for a read only data media is its durability. It should last as long as it is required for the consumer to be able to read the content stored on it. The last, most important requirement is the protection of the information provided. Read only data media has to be safe. This means that after entering the information, the latter cannot be changed.

Traditional understanding of read only data media

The traditional understanding of a read only data media refers to the civil law definition of things. This means that a read only data media in this sense will be a separate item that the consumer will be able – to speak colloquially – to touch. In this sense, a read only data media can be recognized as: paper (print), letter, CD / DVD, portable storage (pen drive).

Changes in the understanding of read only data media

Developing banking IT systems entail the development of Internet banking. This allows anyone – a bank customer – to access the purchased products or banking services by web browser or by a dedicated application for mobile devices, such as smartphones or tablets. Each electronic banking system has a solution that resembles an email box. Most often it is hidden under the “envelope” icon. By using this box, banks communicate with customers on various issues, for example, to inform them of changes in the offer they provide. Hence, there was a problem if this message, transmitted via e-banking system, and therefore de facto via e-mail, fulfils the requirements to qualify as a read only data media. The second problem that has arisen on banks’ practice is the question whether, according to Directive 2007/64/EC (PSD Directive), sending a message to a customer is to be understood as a delivery of information or making information available.

ECJ position on BAWAG against Verein für Konsumenteninformation case

The issues mentioned above have been dealt with before the Court of Justice of the European Union. The Austrian court which adjudicated a dispute between the BAWAG bank (BAWAG PSK Bank für Arbeit und Wirtschaft und Österreichische Postsparkasse AG) and the Austrian consumer association (Verein für Konsumenteninformation) addressed the CJEU with two questions for a preliminary ruling. The said association questioned Bawag’s method of sending information to customers via electronic mail, via the Internet banking system. In its enquiries to the CJEU, the Austrian court aimed to settle two issues. Firstly, whether sending information to a customer about changes in services conditions through an electronic banking system met the requirements of a read only data media and, secondly, whether the information provided in this way is to be considered as delivered or made available. The CJEU, by judgment of 25 January 2017 in Case C 375/15, stated that in order for the information transmitted via the electronic banking system – and thus via the Internet – to be considered as transferred on a read only data media, it must fulfil two conditions constituting a read only data media. On the one hand, the website has to enable the consumer to store and guarantee access to the information for a reasonable amount of time and must prevent the interference with the data sent by the bank or site administrator. The issue of providing information to the consumer through the electronic banking system according to CJEU requires the bank to take additional active actions. This means that in order to talk about delivering rather than providing information, the bank, by deciding to send it through its system, must take steps to notify the consumer of this fact. It is assumed that customers do not check the inbox that is provided in the electronic banking service too often. Banks cannot require this from the consumers either. Hence, the bank, in order for its message to be considered delivered, is obliged to inform the consumer of its availability through a communication channel that the user commonly uses, for example, via SMS.

The consequences of not recognizing a website as a read only data media

Non-recognition of the website – the electronic banking system – and therefore a failure to meet the above requirements results in the fact that the information provided to the consumer is not considered as legally transferred and therefore not properly delivered to the consumer. This implies that the terms contained in such messages are not binding for the customer.

Intervention of the President of OCCP on the Polish market

The President of the Polish Office of Competition and Consumer Protection decided to intervene on the Polish banking market in order to assess whether electronic banking services meet the requirements to identify them as read only data media. According to the President, the current status of electronic systems offered by banks operating on the Polish market does not meet the requirements to be considered as a read only data media. It was pointed out, as the main reason, that these systems are totally under the control of banks, so this makes it impossible for the consumer to be guaranteed the consistency and reliability of the received messages.

Abstract: Polish banking law, Polish consumer protection, read only data media

The article was prepared by KG LEGAL KIEŁTYKA GŁADKOWSKI based in Cracow, Poland, specialising in cross border cases, with its focus on investments in Poland, new technologies, IT and life science. It discusses the specificity of read only data media, terms of recognition for read only data media and current trends in the development of understanding this concept.

Paweł Dyrduł, associate lawyer (specializing in banking law, financial law) from KG LEGAL KIEŁTYKA GŁADKOWSKI – PROFESSIONAL PARTNERSHIP based in Cracow, specializing in cross border issues and servicing life science and IT companies, discusses specificity of read only data media, terms of recognition for read only data media and current trends in the development of understanding this concept.