Personal data protection, case II SA/Wa 1009/11

December 28th, 2011, Tomasz Rychlicki

A Polish farmer who owns an agriculture tourism farm and is advertising his services and business on a personal website, has found negative comments about his services at one of the Internet forum websites. He asked the administrator of the forum to remove his personal data. Some posts have been removed, but the farmer has demanded the removal of all statements and comments, and the access to personal data of forum’s users. He requested the Inspector General for Personal Data Protection (GIODO) to order the forum administrator to remove all comments and to disclose all necessary personal data. The GIODO refused to issue such a decision and ruled that the farmer himself published such information as his name and address on his website in connection to the conducted economic activity. According to the GIODO, the processing of information on the farmer’s name on the Internet forum website, has its justification in Article 23(1)(v) of the Polish Act of 29 August 1997 on the Protection of Personal Data – PPD – (in Polish: Ustawa o ochronie danych osobowych), unified text published in Journal of Laws (Dziennik Ustaw) of 6 July 2002, No. 101, item 926, with subsequent amendments.

1. The processing of data is permitted only if:
1) the data subject has given his/her consent, unless the processing consists in erasure of personal data,
2) processing is necessary for the purpose of exercise of rights and duties resulting from a legal provision,
3) processing is necessary for the performance of a contract to which the data subject is a party or in order to take steps at the request of the data subject prior to entering into a contract,
4) processing is necessary for the performance of tasks provided for by law and carried out in the public interest,
5) processing is necessary for the purpose of the legitimate interests pursued by the controllers or data recipients, provided that the processing does not violate the rights and freedoms of the data subject.

According to the GIODO, the purpose of the legitimate interests is based on providing a service that allows for posting on the internet forum. The dissatisfied farmer filed a complaint against this decision.

The Voivodeship Administrative Court in its judgment of 16 November 2011 case file II SA/Wa 1009/11 dismissed it and decided that personal data published on a website that advertises agritourism services, are closely related to his business activities, and therefore subject to much weaker protection. These services may be subject to different assessments of people using them, there may be also some negative comments. The Court noted that the farmer could file a civil suit for the infringement of his interests against persons who wrote such comments.