Roman Giertych sued Ringer Axel Springer, the publisher of fakt.pl website, for the infringement of personal interests. Mr Giertych demanded that defamatory comments posted at fakt.pl should be removed by the publisher. He also seek for the compensation and the apology to be published on some websites.

Ringer Axel Springer argued that it is not responsible for the comments that appeared on its website based on the provisions afforded in the Polish Act of 18 July 2002 on Providing Services by Electronic Means – PSEM – (in Polish: ustwa o świadczeniu usług droga elektroniczną), published in Journal of Laws (Dziennik Ustaw) No. 144, item. 1204 with subsequent amendments, and the TOS that excluded the liability of the publisher for vulgar or offensive comments.

The District Court in Warsaw in its judgment of 20 October 2011 case file III C 330/11 agreed that all these comments were defamatory, however, the Court ruled that there is a different legal status of the editorial part of the website that included newspaper articles, and another status has to be attributed to a part that included the users’ comments – i.e. an internet forum, even if these comments were posted under the article placed by the owner of a website/web hosting provider. Despite claiming the right to control the content of entries (comments) that were made ​​by website’s readers, in the light of the provisions of the PSEM, the publisher has no such obligation. The Court decided that the publisher can not be held responsible for offensive comments posted on its website, however it can be found responsible only in case it failed to remove such comments, after obtaining positive knowledge of the unlawful nature of such entries. It means that under the Polish law, the publisher is not liable for the infringement of personal rights, but only for a possible damage that is based on the general principles that are provided in the Polish Civil Code. Mr Giertych appealled.

The Appeallate Court in Warsaw in its judgment of 11 October 2012 case file VI A Ca 2/12 made a clear distinction between the services provided by Ringer Axel Springer. The first one was a news service of a daily newspaper made available for free in the electronic form under the domain name fakt.pl, and the second was a free service of the internet forum. The provisions of the Polish Act of 26 January 1984 on Press law – APL – (in Polish: ustawa Prawo prasowe), published in Journal of Laws (Dziennik Ustaw) No. 5, item 24, with subsequent amendments, should be applied to the first service, and the provisions of the PSEM to the second. The Court ruled that comments posted for free, by anonymous users of fakt.pl website under the article that was an online version of a paper edition, do not constitute press materials as defined in the Article 7(2)(i) of the APL. The lack of any influence from the editorial over anonymously published comments, not to mention any of their prior verification makes this kind of speech free of control and as such cannot be regarded as a press material. The Court disagreed with Mr Giertych that such comments should be treated as “letters sent to the editor” of a journal that is published electronically. The Supreme Court in its judgment of 28 September 2000 case file V KKN 171/98 ruled that letters to the editor are the press material if they were sent to the editor for publication, and the editor-in-chief is responsible for publication of press releases, however, the publication of the letter to the editor must be preceded by careful and accurate checking of the information contained in such a letter to the editor. The Court agreed that such comments could be deemed as letter to the editor according to the APL, but only, if they were published in the paper version of the magazine, therefore, the editor (editor-in-chief) or the publisher would have full control over the content of such comments/letters. Users of fakt.pl do not send their their opinions and comments to the editorial of fakt.pl for publication on a discussion forum that exists on that same website, but they decide themselves about such a publication. The editor-in-Chief cannot therefore be responsible for comments published by third parties, because he or she had no control over the content or the action. The Court also ruled that Mr Giertych drawn incorrect conclusions as to the Terms of Service of fakt.pl website, in which the editorial of fakt.pl allegedly reserved the right and at the same time undertook its control over the content posted on fakt.pl website, including comments, and the right to manage them, especially the right to decide which comment deserves publication and which does not. First, the Court found that Ringer Axel Springer has reserved only the right and not an obligation to manage of comments posted by users, secondly, this right was reserved in the TOS ​​not on behalf of the editorial of a journal that is published in electronic form under the domain name fakt.pl, but on behalf of the administrator of the IT system, thirdly, the reserved right applied not to decisions about publication of a particular comment on the website, but to decisions about its blocking, moderation or deletion. Therefore, the Court dismissed the appeal. Mr Giertych filed a cassation appeal.

The Supreme Court in its judgment of 10 January 2014 case file I CSK 128/13 partially agreed with Mr Giertych and returned the case to the lower court for reconsideration. The SC held that if the comments were defamatory and included vulgar words, the IT system applied at fakt.pl should have automatically removed such comments, but it did not, therefore it must be presumed that the publisher of a website, could know about offensive comments. If there was such knowledge, then the publisher/editor is liable for the infringement of personal interests. The Supreme Court established the so-called presumption of facts based on the provisions of the Article 231 of the Civil Proceedings Code. The court may conclude and consider as established facts, that are relevant for the outcome of the case, if such a conclusion can be derived from other established facts (presumption of fact).

Regardless of the cassation complaint filed in this case, Mr Giertych filed a complaint before the Polish Constitutional Tribunal. Mr Giertych requested the Tribunal to decided whether Article 14 of the PSEM is consistent with the principle of the rule of law, the right to protect of private life, family, honor and good name.

Categories: Art. 14 PSEM | Art. 23 CC | Art. 24 CC | computer law | criminal law | defamation | e-law issues | image | ISP liability | legal regulations on computer networks | personal rights or interests | Polish Act on Providing Services by Electronic Means | Polish Civil Code | Polish courts | Polish Supreme Court | privacy | surname.