Personal data protection, case II SA/Wa 2037/10

May 12th, 2011, Tomasz Rychlicki

The Polish branch of McDonald’s Corp. has made a promotional campaign based on the issuance of the so-called “bonificards” i.e. discount cards entitling the holder to purchase certain McDonald’s products at a reduced price. Only employees and business partners were allowed to use such cards. The terms of the promotion explicitly stated that the cards cannot be resold. McDonald’s learned that cards were offered for sale or as a free bonus to other items sold on Allegro – Polish Internet auctions website.

McDonald’s requested Allegro to disclose personal data of persons engaged in the above mentioned auctions, on the grounds that these buyers and sellers violated the terms and rules of promotion, and thus McDonald’s intended to take steps to – on one hand – to deprive sellers of their wrongfully obtained benefits, on the other hand – to take away all bonificards from people who bought them. Allegro refused to provide requested data, indicating that there was no reason to assume that there was any kind of illegal action, arguing that disclosure may be classified as unlawful conduct of the controller that violates personal interests of the users and that may result in Allegro’s responsibility that is based on civil law regulations.

McDonald’s requested the Inspector General for Personal Data Protection to order Allegro the disclosure of information previously requested. The GIODO refused and pointed out that in this case the interests of McDonald’s cannot prevail over the interests of persons affected by the request. The disclosure of such data would be, in fact, too far-reaching interference with the privacy of the person concerned. McDonald’s filed a complaint against these decisions.

The Voivodeship Administrative Court in Warsaw in its judgment of 16 March 2011 case file II SA/Wa 2037/10 overruled GIODO’s decisions. The VAC held that McDonald’s has the right to know who offers promotion cards at online auctions provided by Allegro. The Court ruled that the provisions of the PPD cannot be interpreted as meaning that the disclosure of personal data of a person who offer to sell someone else’s property, violates that person’s interests. The protection of interests of one person cannot be done without prejudice to the rights of others. Especially, when such persons knew that they were trying to dispose of someone’s else things whose value was measured in money (the value of the Company’s products that were available in the promotional terms). The court ordered to reconsider the case, where the GIODO shall take into account all comments made ​​by the VAC. The GIODO decided to file a cassation complaint.

The Supreme Administrative Court in its judgments case files I OSK 834/11 and I OSK 1137/11 agreed with the GIODO. The Court held that in the case of electronic services, personal data may be disclosed only for the purposes of criminal proceedings.

See also “Polish regulations on personal data protection” and “Polish case law on personal data protection“.