DP & FOI Commissioner v. Philip Morris Hungary Ltd.
In 2006, the DP&FOI Commissioner started an investigation of Philip Morris Hungary Ltd. regarding the processing of personal data related to a direct marketing campaign. The collected personal data was further used to send personalised brochures providing information on tobacco products. The Commissioner requested an opinion from the Hungarian Competition Authority whether such direct marketing methods can be considered as advertising of tobacco products, which – according to Act LVIII of 1997 on Business Advertising Activity – is forbidden in Hungary. Since the Hungarian Competition Authority confirmed that it was "advertising of tobacco products," the Commissioner came to the conclusion that personal data shall not be collected and further used for the purpose of sending personalised brochures advertising those products, even with the consent of the data subject. Therefore, the Commissioner advised the data processor to cease the operation and ordered, by resolution, that unlawfully processed data be blocked, deleted, or destroyed. Philip Morris Hungary Ltd. brought a lawsuit against the resolution before the competent Court. According to the decision of the Court "as the addressee requested the information himself/herself to be sent in a closed envelope, therefore the information cannot be considered as an advertisement." Having regard to the decision of the Court the Commissioner revoked the resolution and the case was dismissed by the Court.
Later on, the Commercial Advertising Activities Act came into force. In light of the new act, the Commissioner deemed it necessary to reopen the case and examine the data processing activity. According to the new act, information sent unequivocally to the addressee is considered to be forbidden advertising of a tobacco product; therefore, the collected data is further processed in a way which is incompatible with the specified, explicit, and legitimate purposes. As a consequence, the Commissioner banned the processing activity by resolution. This time Philip Morris Hungary Ltd. did not appeal the decision.