Tomasz Makaruk

Between RODO, AML and the regulations governing the organization of lotteries. The scope of data collected from lottery winners

The example of McDonalds, which as part of a lottery called “50 years of Big Mac burger” demanded from the winners “excessive personal data – including PESEL number”, which was widely featured in the trade press (example:

http://prawo.gazetaprawna.pl/artykuly/1177547,w-mcdonald-s-drobna-pomylka-i-problem-z-rodo.html) shows how complicated the issue of the scope of date is which should be collected (and freely collected) from participants and winners of promotional and audiotex lotteries.

On one hand, the Ordinance 2016/679 of the European Parliament and Council (EU) of April 27, 2016 on the protection of individuals with regard to the processing of personal data and on the free movement of such data and the repealing Directive 95/46 EC – hereinafter “RODO” enforces limiting the scope of collected data to the necessary minimum, on the other hand the act of March 1, 2018 on counteracting money laundering and financing of terrorism (Journal of Laws of 2018 item 723) – hereinafter “the AML act” and the Ordinance of the Minister of Finance of June 22, 2010 on the certificates of obtained winnings and records of certificates and records of paid (issued) winnings , and the Ordinance of the Minister of Development and Finance of February 23, 2017 amending the Ordinance on the certificates of obtained winnings and records of certificates and records of paid (issued) winnings (Journal of Laws of 2017 item 382) on other executive acts to the gambling act set a number of requirements as to the scope of collected data.

It’s common that in order to issue an award won in a lottery, basic data for shipping will be sufficient, such as the first name and the surname and the address of the winner. The reality is more complicated. The purpose of this text is to determine what is the scope of the data to be collected from the winners of promotional and audiotex lotteries, in order to satisfy the law. Let’s start by defining the tresholds for the values of the awards in gross amounts, exceeding which will condition the change in the scope of the collected data..These values are PLN 2,280 and the equivalent of EUR 2,000.  What regulations do these values result from ? About this below.

Regardless of the value of the award the Ordinance of the Minister of Finance of June 22, 2010 on the certificates of obtained winnings and records of certificates and records of paid (issued) winnings , and the Ordinance of the Minister of Development and Finance of February 23, 2017 amending the Ordinance on the certificates of obtained winnings and records of certificates and records of paid (issued) winnings (Journal of Laws of 2017 item 382) specifies that from each winner requesting the issue of a certificate of winnings must be collected  (for the purpose of completing the printout of the certificate): first name and surname, first name of the father, data and place of birth, series and number of the identity document and PESEL and additional (for the purpose of completing the record of certificates) such as: address of residence and citizenship, if the winner does not have a PESEL number.

The first treshold of the value of awards spent in lotteries in the amount of PLN 2,280 is based on art. 20 par. 5 of the act of November 19, 2009 on gambling games (Journal of Laws of 2017 item 165) – hereinafter “uogh”, which specifies that the entity organizing gambling games is obliged to keep records of paid (issued) winnings, which value is at least PLN 2,280. Par. 7 uogh specifies that from the award winners with a value equal to or exceeding PLN 2,280 the organizer should take the first name and surname, type and number of the identity document, PESEL number, and in case of lack of the PESEL number – address of residence, date of birth and citizenship.

The second treshold of the value of awards spent in lotteries in the amount equivalent to EUR 2,000 is based on art. 35 pt. 1 par. 4 of the act of March 1, 2018 on counteracting money laundering and financing of terrorism (Journal of Laws of 2018 item 723) – hereinafter “AML act” in connection with the need to identify the winner in the scope of data specified in art. 36 of the AML act. According to this provision the organizer is obliged to collect data such as: first name and surname, citizenship, PESEL or date of birth, series and number of the identity document of the winner, address of residence, name (company), tax identification number (NIP), and the address of the main place where the economical activity is being conducted – in the case of a natural person running an economical activity.

Did McDonalds have the right to demand PESEL from the winner of socks in the lottery ? If only the socks were worth less than PLN 2,280 gross, and the winner did not demand to issue a certificate of winning, he did not.

Finally, please remember that the above text is not legal advice, it is written only from the perspective of an entity actively operating in the organization of promotional and audiotex lotteries.

dr Tomasz Makaruk

President of the Management Board i360 Sp. z.o.o.

Warschau, July 18, 2018

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