On 2 September 2002, the Polish company Secunda, a publisher of a portal website, posted a link to www.mlode-dupy.w.tertia.pl website on its webpage under the “Entertainment and sex” category in the “Winning websites” section under the name “Young women are the best”. The link to www.mlode-dupy.w.tertia.pl website was described as follows “10 hardcore pictures galleries. One could deal with this issue far better”. The gallery no 3 featured pictures of a woman in a swimsuit, that were made during a photographic session for candidates to advertising campaign. The plaintiff who worked with models agency sued Secunda. She argued that she has never agreed to a distribution of her image, nor received any remuneration for participation in a photo session. The plaintiff noted that a link to the www.mlode-dupy.w.tertia.pl website combined with the recommendation of this site are a form of distribution of the image of a person depicted in photos available on Secunda’s website. The defendant took no steps to ascertain whether the plaintiff consented to distribute these photographs and it did not take any action to obtain such consent, the defendant’s conduct, involving the unauthorized dissemination of the image of the plaintiff on the porno website, violates her image rights and degrade her in the public due to the inclusion of her image in pornographic pictures. Secunda claimed that it has no standing in this case because the infringer was a person who created a gallery available under www.mlode-dupy.w.tertia.pl link.

The District Court in Kraków in its judgment of 26 February 2004 case file I C 2060/03 ruled that Secunda infringed on plaintiff’s personal rights by publishing questioned images. The court said that Secunda was responsible because it had the opportunity to check the contents of the “Winning websites” section, and images contained therein. The editor was responsible for the compilation of recommendations and a link to www.mlode-dupy.w.tertia.pl website, and in this case it was Secunda. Both parties appealed.

The Appellate Court in Kraków in a judgment of 20 July 2004 case file I ACa 564/04 TPP 2004/3-4/155 rejected Secunda’s appeal and changed the lower Court’s decision on damages awarded.

Categories: Art. 23 CC | Art. 24 CC | Art. 81 ARNR | Art. 83 ARNR | case law | image | personal rights or interests | Polish Act on Authors Rights and Neighbouring Rights | Polish Appeallate Court | Polish Civil Code | telecommunication law.