Polish IP & IT law – copyright trademark computer internet telecomm

Archive for: computer law

Access to public information, case XVI K 112/11

May 18th, 2012, Tomasz Rychlicki

Grzegorz Pluciński, the CEO of the Polish company Mainframe, filed a private accusation against Andrzej Machnacz who was the Director of the Centre of Information of the Ministry of the Interior and Administration in 2008-2010. It is probably the first case based on the provisions of Article 23 of the Polish Act of 6 September 2001 on access to public information – API – (in Polish: Ustawa o dostępie do informacji publicznej), published in Journal of Laws (Dziennik Ustaw) No. 112, item 1198, with subsequent amendments.

Article 23. Whoever, contrary to the obligation weighing on him, shall not make the public information available, is subject to fine, penalty of restricted liberty or penalty of deprivation of liberty for up to one year.

Mr Pluciński argued that the Director was obliged to disclose a contract between the Centre and IBM. The sum of the contract was below 38.000 PLN which allowed for its conclusion without meeting the conditions of the Polish Act on Public Procurement. During the trail before the Regional Court for Warszawa Mokotów, the Director argued that the request for disclosure of public information that was filed by Mainframe was worded too broadly and did not relate to this contract. Mr Machnacz also argued that he did not take the refusal decsion, and only accepted suggestions of his employees, and after consultation with outside law firm. However, only two signatures were available under this decision. According to the provisions of Article 16(2) of the API, the justification of the decision on the refusal of making the information available should also include the names, surnames, and these persons’ functions, who took decision under the procedure on making the information available and marking the entities, in relation to whose goods defined in Article 5, it. 2, the decision on the refusal to make information available was issued. The trial has been postponed until June 2012.

Internet domains, case III CSK 120/11

May 15th, 2012, Tomasz Rychlicki

MEDianus sp. z o.o. and Medianus Agencja Reklamowa sp. z o.o. are seated in the same city, at a location nearby. The first one uses medianus.net domain name and the second medianus.pl. The first company was entered in the Register of Business Entities in the National Court Register (KRS) as MEDianus in June 2003 r. The second one was entered in 2009. MEDianus sp. z o.o. filed a complaint, to prohibit the other company to use the name “medianus” in the company name and as a domain name, based on the provisions of Article 3 and 5 of the Polish Act of 16 April 1993 on Combating Unfair Competition – CUC – (in Polish: ustawa o zwalczaniu nieuczciwej konkurencji), published in Journal of Laws (Dziennik Ustaw) No. 47, item 211, with subsequent amendments. MEDianus sp. z o.o. argued the the use of the same company name caused many confusions with delivery of post or invoices.

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The District Court dismissed all claims. However, the Appellate Court in Kraków agreed with MEDianus sp. z o.o. appeal and ordered Medianus Agencja Reklamowa to change its company name and website and to publish an apology in two national newspapers.

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The Polish Supreme Court in its judgment of 9 December 2011 case file III CSK 120/11 dismissed the complaint filed by Medianus Agencja Reklamowa. The Court held that in order to apply the provisions of Article 5 of the CUC, both companies have to be in competitive relationship. This situation happens when there is a risk of confusion with regard to the identity of entrepreneurs. The Court also confirmed that the so-called cybersquatting is an unnamed delict (tort) under the Polish law on combating unfair competition.

See also “Polish case law on domain names“.

Access to public information, case I OSK 2265/11

May 11th, 2012, Tomasz Rychlicki

A Polish company requested the Ministry of the Interior and Administration (MIA), and Director of the Centre of Information of MIA, to disclose all legal opinions prepared by the Polish Information Processing Society that concerned IT systems created by the Ministry. The Director provided all the requested documents, however the Ministry only asked the Company to clarify the request in the letter sent on October 2009. The Company filed a complaint for failure to act, claiming administrative inaction in its case. The Ministry also argued that the requested information cannot be disclosed because such expert opinions are copyrighted materials, and as such, are not deemed as public information.

The Voivodeship Administrative Court in Warsaw in its judgment of 4 February 2010 case file II SAB/Wa 155/09 agreed with the Company and ordered the MIA to disclose requested information. The Court ruled that such expertises are public information, so they should be disclosed, unless they contain secret information protected by law. The Minister of MIA filed a cassation complaint. The Supreme Administrative Court in its judgment of 3 August 2010 case file I OSK 757/10 repealed the contested judgment and returned it to the VAC for further reconsideration. However, the SAC only discussed and held that the VAC did not examine whether there was administrative inaction of the MIA. The Court did not examine the allegation that there was a breach of regulations of the Polish Act of 6 September 2001 on access to public information – API – (in Polish: Ustawa o dostępie do informacji publicznej), published in Journal of Laws (Dziennik Ustaw) No. 112, item 1198, with subsequent amendments. The Voivodeship Administrative Court in Warsaw in its judgment of 8 September 2011 case file II SAB/Wa 174/11 was bound by the interpretation of the SAC, and decided that there was administrative inaction. The Minister of the Interior and Administration, once again filed a cassation complaint.

The Supreme Administrative Court in its judgment of 7 March 2012 case file I OSK 2265/11 dismissed it. The SAC held that if the Minister found that it had the requested information, while it also concluded that there are obstacles to the disclose because of the circumstances set out in Article 5 of the API, or other provisions of specific laws, it was obliged to initiate ex officio proceedings on the refusal to disclose information. The refusal should be issued as an administrative decision only. The lack of such a decision was deemed as administrative inaction, subject to a complaint. The letter sent by the Minister on October 2009 was clearly not an administrative decision. The SAC reminded that the administrative decision should obligatory contain: the name of public authority, date, identity of the party or parties, the legal basis on which the decision was issued, the conclusion and findings, factual and legal grounds, instruction, whether and how to file an appeal against the decision, the signature with the name, surname and position of the person authorized to issue a given decision. Although the letter was signed and affixed with the seal by the Deputy Director of Administration and Finance Office of the MIA, is was not mentioned that the Director acted under the authority of the Ministry. The letter did not contain a ruling on the request of the Company, but on the contrary – the Director explicitly stated that the request was not recognized in accordance with that Act on access to public information. The Letter had no form of a decision, it did not include the instruction, whether and how to file an appeal against it. The Court decided that this letter was purely information message sent on paper. The Polish legislature did not formulate any legal definition of “access to public information”, or the very concept of public information, both in the Polish act on access to public information or in any other legal act. However, Article 1 of the API ab initio provides that each information on public matters constitutes public information in the understanding of the Act and is subject to being made available on the basis of principles and under the provisions defined in this Act. According to legal commentators, a public matter is the activity of both public authorities, economic and professional self-government bodies that exercise tasks of official authority and the management of public property. A specific individual case of a person, especially of a private nature, is not deemed as public matters. The access to administrative files falls Within the catalog of public information. Public information is therefore the content of any document relating to public authority. These range from documents produced by government bodies, as well as those used in the execution of the tasks provided for by law, even if they do not come directly from the authorities. Such opinion was confirmed by the Supreme Administrative Court in its judgment of 30 October 2002 case file II SA 1956/02, the Voivodeship Administrative Court in Opole in its judgment of 17 January 2008 case file II SAB/Op 20/07, the Voivodeship Administrative Court in Warsaw in its judgmet of 16 July 2008 case file II SA/Wa 721/08, the Voivodeship Administrative Court in Warsaw in its judgmet of 26 June 2008 case file II SA/Wa 111/08. The criterion for determining the disclosure and availability of the documents under the API is not their authorship, but the opinion that they are used to carry out public duties, and were prepared at the request of public authorities, when at the same time, their content and does not violate the privacy of an individual or trade secrets of business. It is not about the disposal of copyright, but about access to the content of the document that was created on behalf of the public authority to carry out public duties. Such opinion was confirmed by the Supreme Administrative Court in its judgment of 15 July 2011 case file I OSK 667/11, by the Supreme Administrative Court in its judgment of 7 December 2010 case file I OSK 1774/10, by the Supreme Administrative Court in its judgment of 18 September 2008 case file I OSK 315/08, by the Supreme Administrative Court in its judgment of 9 February 2007 case file I OSK 517/06. Not all opinions or expertise, that were created by a public authority or on behalf of public authorities, are public information. The classification of legal opinion in documents that are available under the API is determined by the purpose for which it was prepared. A legal opinion prepared for the public authority on the merits of initiating future proceedings in a particular civil case does not constitute public information for the purposes of Article 1 of the API. It was confirmed by the Supreme Administrative Court in its judgment of 16 June 2009 case file I OSK 89/09. An expertise that specifically relate to a given legislative proposal for which the legislative process continues, are deemed as public information. These documents relate to the facts, of such, is the legislative proposal submitted to the competent authority in the legislative procedure. It was confirmed by the Supreme Administrative Court in its judgment of 27 January 2012 case file I OSK 2130/11. If a disclosure of public information threatens the common or individual interests, there is the possibility to restrict the access to such information by refusing its disclousure by an administrative decision that should be based on the provisions of Article 16 of the API. The expertise prepared by the Polish Information Processing Society for the Ministry, associated with the formation by that authority of systems, and the preparation of examinations for persons applying for a certificate of qualification for the controllers and communication systems, satisfy the conditions of public information, because they concern the implementation of tasks by the public authority. If the the expertise concerned computerization and informatization of the public sphere and involved the expenditure of public funds, therefore it is public information, because it refers to the public affairs, which is the issue of computer software/programs in the implementation of public tasks, and how they are used and implemented, the implementation and impact of these tasks and information on public property, including property of the State Treasury.

There was also a specific issue of the expropriation of copyright for public purpose. Article 1 of the Polish Act on Authors Rights and Neighbouring Rights provides that the subject of copyright should be any manifestation of creative activity of individual nature, established in any form, irrespective of its value, purpose or form of expression (work). Opinions and expertise made by qualified persons or entities meet the statutory definition. According to Article 4 of the ARNR, the copyright should not apply to legislative acts and their official drafts, official documents, materials, logos and symbols. Expertises commissioned by the Ministry, are official documents within the meaning of the Article 4(2) of the ARNR. They are used as a servant in decision-making process of the executive authority and are not the subject of copyright. The Polish Supreme Court and the Supreme Administrative Court agree that the official documents are materials that come from the office or other state institution or concerned official matters, or was the result of application of the official proceedings. As it was decided by the Supreme Court in its judgment of 26 September 2001 case file IV CKN 458/00, and by the Supreme Administrative Court in its judgment of 19 February 1997 case file I SA/Kr 1062/96. The effectiveness of social control and supervision over the information used on completion of assigned tasks of public authority correspond with such understanding of the relationship between the provisions of Article 1 of the API and Article of the ARNR. Such opinion was confirmed by the Supreme Administrative Court in its judgment of 27 January 2012 case file I OSK 2130/11. Hence, the definition of an official document, provided in Article 6(2) of the API does not provide a basis for restricting access to public information, defined in the Article 1(1) of the API, including the catalog of examples contained in Article 6(1) of the API.

E-signature law, case II SAB/Łd 35/12

April 11th, 2012, Tomasz Rychlicki

A Polish citizen filed a complaint to the Voivodeship Administrative Court via e-mail, and signed it with the qualified electronic signature. The Court called him to sign the complaint manually, within 7 days under pain of rejection of the complaint. The applicant argued that he already signed it.

The Voivodeship Administrative Court in Łódź in its order of 13 March 2012 case file II SAB/Łd 35/12 rejected the complaint. The Court held that the complaint must meet two kinds of requirements. First of all, the complaint must meet all the requirements provided for the letter in court proceedings, and also it has to include an indication of the contested decision, order, or any other act or activity, the indication of an authority or body whose action or inaction is a subjetct of the complaint, the explanation of violation of law or legal interest. As each letter, the complaint should therefore be signed by the party or its legal representative or attorney, according to the provisions of Article 46 § 1 point 4 of the Polish Act on Proceedings Before Administrative Courts – PBAC – (in Polish: Prawo o postępowaniu przed sądami administracyjnymi of 30 August 2002), published in Journal Of Laws (Dziennik Ustaw) No 153, item 1270 with subsequent amendments. According to the Court, for the effectiveness of the electronically signed letter it has to be signed manually by the party. Therefore, the signature of the applicant’s letter must be submitted in person, i.e, it has to be a manual sign of a specific person to allow for its identification. An exception to the above mentioned rule, is a provision stating that a letter which can not be signed by a party in person, should be signed by a person authorized by the party. Such a person has to explain the reasons why the party itself did not signed the letter. Failure to sign the complaint within the prescribed period of time means that the applicant did not remove its defects in form, which results in rejection of the complaint by the Court. The VAC noted that its view is confirmed by well-established case law of the administrative courts. See the order of the Supreme Administrative Court of 16 November 2011 case file I OZ 831/11, the order of the SAC of 8 September 2011 case file I OZ 657/11, the order of the SAC of 27 May 2011 case file I OZ 368/11.

See also “E-signature law, case II SA/Gd 573/10“, “E-signature law, case I OPP 25/08” and “E-signatures in Poland“.

Personal interest, case I CSK 111/11

March 25th, 2012, Tomasz Rychlicki

Cezary Pazura sued Grupa o2, the owner and publisher of pudelek.pl website. Mr Pazura claimed that the company infringed his dignity, the inviolability of the home, privacy and publicity, by publishing 17 articles that concerned his relationship with Edyta Zajac, then fiancee, and now his wife. He argued that comments like “his mistress was no longer pretending, what she meant?”, “oldish playboy” were clear examples of the infringement. The District Court agreed with Mr Pazura, but Grupa o2 appealled, and the Appellate Court reversed the contested judgment and dismissed the suit. Mr Pazura filed a cassation complaint.

The Supreme Court in its judgment of 14 December 2011 case file I CSK 111/11 repealed the contested decision and returned it to the Appellate Court for further reconsideration. The Court held that the public status of a person does not automatically mean that his or her private life becomes also a “public life”. The Court clarified the understanding of the provision of Article 14(6) of the Polish Act of 26 January 1984 on Press law – APL – (in Polish: ustawa Prawo prasowe), pblished in Journal of Laws (Dziennik Ustaw) No. 5, item 24, with subsequent amendmets.

It is not allowed to publish information and data concerning the private sphere of life without the consent of the person concerned, unless it is connected directly with the public activity of such a person.

The Court ruled that in this case it was necessary to demonstrate the relationship between the public activity carried out by Mr Pazura, and published image, or private information that was published on pudelek.pl website. Therefore, it had to be a relationship between a person’s behavior in the public sphere. In addition, the disclosure of such information should serve to protect specific, socially legitimate interest. Therefore, the primary task of the courts was to determine whether in this case, Mr. Pazura’s consent was granted, or whether it was not needed at all.

Criminal law, case XI W 1497/11/P

March 15th, 2012, Tomasz Rychlicki

The publisher of histmag.org website requested its users to donate money via PayPal or similar services, in order to raise funds for the functioning of this history site. An anonymous user made a complaint to the former Polish Ministry of Internal Affairs and Administration, now Ministry of Interior, claiming that this action constituted an illegal public money collection, which is prohibited according to the provisions of Article 56 § 1 of the Polish Code of Offences – PCO – (in Polish: Kodeks wykroczeń) of 20 May 1971 published in Journal of Laws (Dziennik Ustaw) of 1971 No 12 item 114, with subsequent amendments.

Whoever, without the required permit or in violation of its conditions, organizes, or holds a public collection of donations, shall be subject to a fine.

According to the Polish Act on Public Collections of 5 March 1933, any public collections of donations in cash or in kind, for a pre-determined goal, requires prior authorization from the authority. This permit should be granted as an administrative decision. The Regional Court in Kraków in its warrant ruling found the publisher guilty. The publisher filed objections to this judgment.

The Regional Court for Kraków-Podgórze in Kraków, Wydział XI Karny in its judgment of 6 February 2012 case file XI W 1497/11/P acquitted the publisher of any charges. The court ruled that the public collection was conducted by receiving direct wire transfers or via PayPal. The provisions of the PCO and the definition of public collection included in the Act on Public Collections refers to public collections of cash or in kind, and are not applicable to electronic transfers.

Personal interest, case III C 202/09

March 12th, 2012, Tomasz Rychlicki

Arnold Buzdygan sued Agora S.A. the owner and publisher of kobieta.gazeta.pl website, claiming that the company infringed his personal interest by publishing an online article entitled “Trolls – Internet’s vexatious personas” in which his name was mentioned. The District Court in Warsaw in its judgment of 12 December 2011 case file III C 202/09 dismissed the complaint and ruled that the criteria of the infringement of personal interests should be based on objective rather than subjective circumstances that usually arise from the feelings of the person concerned. The objective response of public opinion is more important in such case. The Court noted that Mr Buzdygan is a public person whose opinions and statements were subject to criticism by other users. Such negative comments were directed to his activities and comments posted on the Internet, and not directly against him.

See also “Computer crime, case V K 1595/08” and “Personal interest, case I ACa 949/09“.

Criminal law, case II Ka 269/11

November 14th, 2011, Tomasz Rychlicki

Maria S. was charged by the Prosecutor based on the provisions of Article 278 § 2 of the Polish Criminal Code – CRC – (in Polish: Kodeks Karny) of 6 June 1997, Journal of Laws (Dziennik Ustaw) No 88, item 553, with subsequent amendments.

Article 278. § 1. Whoever, with the purpose of appropriating, wilfully takes someone else’s movable property shall be subject to the penalty of deprivation of liberty for a term of between 3 months and 5 years.

§ 2. The same punishment shall be imposed on anyone, who without the permission of the authorised person, acquires someone else’s computer software, with the purpose of gaining material benefit.

Such situation happened because, during the investigation, the Police found on her laptop two shareware programs Win ZIP 8.1 and Win Rar 3.0. This software was valued 113,89 PLN each, and the period of time to buy a license already expired. Maria S. explained that she wasn’t aware that she had illegal software installed. She argued that both programs were installed by computer service technicians during the repair of her laptop. This statement was confirmed by a witness expert testimony. The expert said that both programs were installed at the same time, when the operating system was also configured. The expert noted that this is typical practice of computer services personnel who install software needed to install other programs, and do not remove it after the completion of repairing. At the time of installation of both programs, they were legal.

The Regional Court in Biłgoraj acquitted Maria S. of all charges. The Court found that she did not act in order to gain material benefits and she had no full awareness that her behavior lead to the obtainment of computer programs without the consent of the person entitled. The Prosecutor appealed. He argued that Maria S. was guilty because she wasn’t careful enough, and she did not buy both licenses immediately.

The District Court in Zamość in its judgment case file II Ka 269/11 upheld the verdict. The Court ruled that issues of normal or increased diligence or care that should appear in case of expired trial or shareware software, do not belong to the category of the constituent elements of the alleged offense.

Personal interest, case XXIV C 1035/10

November 14th, 2011, Tomasz Rychlicki

The “Nigdy Więcej” (Never Again) Association and the “Zielone Światło” (Green Light) Foundation organized a social action entitled “Nazism never again on Allegro”. It was a protest against a Polish auction website Allegro.pl which allowed to buy and sell different Nazi gadgets and memorabilia. The Foundation together with a writer, artist and social activist Jerzy Masłowski prepared an illustration with Allegro.pl logotype in which in which two L letters were changed and shaped as the SS symbol. This illustration was used on postcards that were handed out to different people during the street-action that happened near Metro Świętokrzyska in Warsaw on 21 March 2010.

Stop Allegro

On 20 April 2010, the Foundation received a cease and desist letter from QXL Poland – the owner of Allegro. The Company requested the removal from all public places of all publications, photographs, posters and billboards, and other materials that included the altered trade mark. QXL demanded destruction of all the above mentioned materials and asked the Foundation to publish an apology on its website, as well as in the pages of Gazeta Wyborcza newspaper. The Foundation refused to comply.

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QXL Poland sued the “Zielone Światło” foundation and Jerzy Masłowski for the infringement of personal rights. During the trial, the Foundation argued that it has conducted correspondence with Allego with regard to products with fascist symbols or products referring to fascist ideology, that were offered at different auctions. However, it has not brought the intended effect, because Allegro.pl did not remove these items from its website. For this reason, the Foundation organized the street action. The Foundation argued that from 8 June 2010, the provisions of Article 256 of the Criminal Code were amended.

Art. 256.
§ 1. Whoever publicly promotes a fascist or other totalitarian system of state or incites hatred based on national, ethnic, race or religious differences or for reason of lack of any religious denomination
shall be subject to a fine, the penalty of restriction of liberty or the penalty of deprivation of liberty for up to 2 years.

§ 22 The same punishment shall be imposed on anyone, who for the purpose of dissemination, produces, records or import, acquire, stores, possess, presents, transports or transfers a print, record or other item of the content specified in § 1 or being a carrier of the fascist, communist or other totalitarian symbolism..

§ 3 A crime is not committed by a perpetrator of a forbidden act specified in § 2, if he or she commits the said act in the course of artistic, educational, collectible or scientific activity.

The Foundation concluded that its action was a response to long-term omission of Allegro. The action was organized to draw the attention of relevant authorities and the public at auctions that poses a danger to others. It sought to protect an important public interest, and therefore was not unlawful. In addition, the Foundation argued that according to the legal doctrine the criticism aimed at improving the reality is not illegal, even if it is excessively expressive in description and in negative assessment, as well as it’s impolite way of expression and presentation of arguments, if it is justified by the importance of issues raised and the literary form that was used. Moreover, the scope of permissible criticism depends on the weight of social affairs, and in case of doubt, freedom of expression takes precedence, and in some cases even offensive criticism is acceptable. If the case requires so, the criticism might be very offensive, and it may even seek to destroy the enemy, for example, in the dispute against pedophilia or against the view that is glorifying Stalin. The Foundation argued also that a request for legal protection raised by Allegro cannot ban the Foundation and other individuals from expressing their critical opinions of the plaintiff’s conduct. Such behavior constitutes an abuse of the subjective right as decided by the Appeallate Court in Lódź in its judgment of 25 May 2006, case file I ACa 15/06, published in electronic database LEX, under the no. 512493.

On 9 November 20011, a lawyer representing the Foundation presented a legal opinion issued by Prof. Wojciech Sadurski. Prof. Sadurski wrote that there was no violation of personal interests. In the opinion of the author, the case brought by QXL Poland illustrates the conflict between two types of claims related to absolute rights protected by the law. The claims relating to freedom of expression, and intellectual property claims relating to the protection of trade marks owned by QXL Poland. Citing the case law of the Polish Constitutional Tribunal, prof. Sadurski argued that freedom of speech is superior to other constitutional rights and freedoms. He noted that limiting the right to freedom of expression by issuing a ban on speech, would violate the essence of the constitutional right to freedom of speech. Prof. Sadurski cited Smith v Wal-Mart Stores, 537 F.Supp.2d 1302 (ND GA 2008), however he pointed out that the Foundation does not conduct any commercial activity, and the risk of consumers’ confusions is clearly excluded. Please bear in mind that such opinions are treated by the Courts as private documents, not as the expert witness evidence/testimony. The case is pending and the next hearing is scheduled on 6 February 2012.

QXL Poland filed also a request for preliminary injunction. The District Court in Warsaw in its order of 20 January 2011 case file XXIV C 1035/10 dismissed it during a closed-door court session (in camera). However, the Appeallate Court in Warsaw in its decision of 5 May 2011 case file I ACz 671/11 decided to secure the claim of QXL. The Court prohibited the Foundation and Jerzy Masłowski from transmitting and disseminating on their websites of any publications or materials containing the questioned trade mark.

Personal interest, case IV CSK 665/10

November 7th, 2011, Tomasz Rychlicki

Writing under a pseudonym, Dariusz B. posted a comment on the website “Gazeta online Elbląg 24″. In his post Dariusz B. wrote to the Mayor of the Elbląg town, that he has photographs of people who sit in the city council, and he described the content of these pictures as a “sex scandal”. He noted that the Mayor’s spokesman ignored this case, so he wanted to know what should he do next with such photographs. Other anonymous Internet users posted comments under the post that has been written by Dariusz B. One of them has disclosed who is the author of the post, and also expressed a negative opinion about the post, by calling it a blackmail. This person also suggested that Dariusz B. has used the media for his own purposes in order to manipulate press journalists. The intentions of Dariusz B. and his honesty, were also undermined. The post of Dariusz B. was described as a blatant violation of the law for which he should bear criminal responsibility. “Gazeta online Elbląg 24″ is a service available for free. It is operated by the Municipality of the Elblag town. The comment in which personal data of Dariusz B. was disclosed was written from a computer that had the IP address belonging to the organizational unit of the Elblag town. The unit operates wireless Wi-Fi, whose range includes several publicly accessible areas of the building and parking lot adjacent to it. It was not possible to identify the person who posted this comment. The Police, at the request of Dariusz B. commenced an investigation and failed to establish who was the author of the comment, even when the Municipality of Elblag has disclosed all data, including IP addresses. Dariusz B. sued the Municipality of Elbląg for the infringement of his personal interests. The District Court and the Appellate Court dismissed the suit. Dariusz B. filed a cassation complaint.

The Supreme Court in its judgment of 8 July 2011 case file IV CSK 665/10, published in electronic database LEX, under the no. 898708, held that critical comments of the content of post and the very fact of its posting, or disclosure of the name and surname of Dariusz B., was not a violation of his personal interest. However, it was a violation of personal interests (dignity and reputation) when such action has been called illegal activity, fraudulent and manipulative, a blackmail and provocation, which undoubtedly discredited Dariusz B. in public opinion, especially as a social activist, who was active at another online forum. Such statement, not supported by the facts, was unlawful. In the case of an infringement of one’s personal interests, the court may award pecuniary compensation to a person whose personal interests have been infringed, an approriate amount as pecuniary compensation for the wrong suffered or may, on his demand, adjudge an appropriate amount of money to be paid for a social purpose chosen by him, irrespective of other means necessary to remedy the effects of the infringement. Not only the person who directly caused the damage shall be liable, but also any person who has induced or helped another person to cause the damage, including those who consciously took benefit from a damage caused to another person. However, the Court ruled that there was no normal causal link between the actions of the Municipality of Elblag, and the damage suffered by Dariusz B., and such a link occurs only when the action is directed to accomplish the tortious activity.

By opearating a website “Gazeta online Elbląg 24″ and a discussion forum, the Municipality of Elbląg was deemed as the Internet services provider. However, such ISPs, are responsible for the violation of personal rights performed by others only when they knew that the post violates these interests and they did not immediately prevent the access to the post. Therefore, the ISP is not obliged to control the content of posts written by users on a free discussion forum website. Taking into account the nature and purpose of services based on making available free of charge of a discussion website, and considering also that there were no general rules for the management of such services and systems, the Court held that there were no grounds to impose a general obligation on the ISP to provide tools to identify users of such a website. The Court ruled that the anonymity of persons using the publicly available online news website, is a generally accepted principle and essence of this type of service. It provides freedom of expression, which is the goal of such websites. Consequently, the Court held that the ISP that created and provides free access to the website with a discussion forum, has no obligation to ensure the ability to identify the users who maded posts on this website.

Criminal law, case III K 76/08

October 28th, 2011, Tomasz Rychlicki

In 2007, Marek Witoszek wrote SEO software that allowed him to change the visibility ranking of a website of the Polish president Lech Kaczyński in search engines, when one of the Polish offensive words was typed in. He was prosecuted and charged based on the provisions of the Article 135 § 2 of the Criminal Code – CRC – (in Polish: Kodeks Karny) of 6 June 1997, Journal of Laws (Dziennik Ustaw) No 88, item 553, with subsequent amendments.

Article 135. § 1. Whoever commits an active assault on the President of the Republic of Poland
shall be subject to the penalty of the deprivation of liberty for a term of between 3 months and 5 years.

§ 2. Whoever insults the President of the Republic of Poland in public
shall be subject to the penalty of the deprivation of liberty for up to 3 years.

The trial has been suspended for two years, because the judgment of the Constitutional Tribunal was expected to answer the question, whether one can be punished for insulting the president as an institution, not as a person. The Constitutional Tribunal in its judgment of 6 July 2011 case file P 12/09 held that Article 135 § 2 of the CRC is consistent with Article 54(1) of the Polish Constitution in connection with Article 31(3) of the Constitution and Article 10 of the Convention for the Protection of Human Rights and Fundamental Freedoms signed in Rome on 4 November 1950, as amended. Mr Witoszek pleaded guilty and has requested a voluntary submission to punishment.

The District Court in Bielsko-Biała in its judgment of 25 October 2011 case file III K 76/08 sentenced Mr Witoszek for three months of imprisonment, and conditionally suspended the execution of a penalty for three years.

E-access to public information, case IV SA/Gl 1002/11

October 14th, 2011, Tomasz Rychlicki

A journalists requested one of the Polish companies to disclose information about the earnings of its directors (CEOs) and members of the supervisory board. He also wanted to know how many prizes, bonuses and other financial inducements were received by the CEO and the board members in the last three years, and how much the company has spent on advertising and promotion, how much spending and subsidies were distributed for non-governmental organizations, staff training, banquets and small meetings. He also demanded the indication of dates, names and amounts, the method of selecting contractors. This request was based on the provisions of the Polish Act of 6 September 2001 on access to public information – API – (in Polish: Ustawa o dostępie do informacji publicznej) Journal of Laws (Dziennik Ustaw) No. 112, item 1198, with subsequent amendments. The journalist noted that the expected response should be sent to him via e-mail. The company provided information only on salaries, and refused to disclose other information that was subject to the request. The decision has been sent in the form of an electronic document to an e-mail address provided by a journalist. The company noted that other information belong to the category of “processed information”, therefore, the applicant has to indicate why the disclosure of such information is particularly important for the public interest. The journalist filed a complaint against this decision.

The Voivodeship Administrative Court in Gliwice in its judgment of 19 September 2011 case file IV SA/Gl 1002/11 rejected it, because of procedural reasons. However, the VAC held that the administration decision issued in the form of an electronic document must be signed by a secure electronic signature that is verifiable by a valid qualified certificate. The administrative decision that does not meet these requirements can not be regarded as signed, and therefore is not valid according to the provisions of Article 14 of the Administrative Proceedings Code – APC – (in Polish: Kodeks postępowania administracyjnego) of 14 June 1960, Journal of Laws (Dziennik Ustaw) No 30, item 168, consolidated text of 9 October 2000, Journal of Laws (Dziennik Ustaw) No 98, item 1071 with subsequent amendments.

Article 14. Principle of written proceedings
§ 1. All matters shall be disposed of in writing or in the form of an electronic document as defined in the Act of 17 February 2005 on Informatization of Operation of Entities Performing Public Tasks (Journal of Laws No. 64, item 565, as ammended), to be served by means of electronic communication.

The VAC also noted that in this case the decision has not been delivered in the proper form.

Article 110.
The public administration body issuing the decision shall be bound by it from the time of its service or publication, unless the Code provides otherwise.

Although in this case the content of the decision was known but it was not delivered in the form provided in the provisions of the APC. The decision was in fact delivered in writing but it was served by electronic means and in a way that was inconsistent with the provisions of APC, which could not be considered as effective service.

Tax law, case I SA/Łd 762/10

September 24th, 2011, Tomasz Rychlicki

The Voivodeship Administrative Court in Łódź in its judgment of 23 September 2010 case file I SA/Łd 762/10 held that a person whose account on an auction website was illegally hacked and used for sale of goods by someone else, is not obliged account to tax for such activity.

Personal interest, case I ACz 462/11

June 20th, 2011, Tomasz Rychlicki

A Polish Internet user has started a Facebook account in which he accused a travel agency Alfa Star from Radom of dishonesty and presented bad reviews of its services. Other Facebook users also started to post negative comments. The travel agency filed a suit for protection of personal interest together with the injunction to delete the Facebook account along with all the comments until the final decision in the case is rendered. The District Court in Radom granted the injunctive relief. Bartosz C. filed a complaint against this decision. The Appellate Court in Lublin in its order of 30 May 2011 case file I ACz 462/11 reversed the injunction. The Court noted that although the company has shown its interest in granting the injunction, it also seek this way to satisfy all claims included in the suit. If, before the end of the proceeding, the company would obtain the injunction to remove an account, this would actually satisfy its claims. The Court noted that the injunction should be granted to the extent that the plaintiff is afforded the adequate legal protection, and the defendant it not burden more than it’s needed. Facebook allows for the deactivation of an account and such injunction should be considered by the District Court as adequate injunction.

Personal data protection, case II SA/Wa 1212/10

February 4th, 2011, Tomasz Rychlicki

The case of Tomasz W. and his image treated as personal data still continues. See “Personal data protection, case I OSK 667/09“. GIODO annulled its earlier decision, however it also refused to take account Tomasz W. requests in its new decision. GIODO ruled that personal data (photos and captions) of Tomasz W. are not presented on the website, and are not publicly available because they were removed from the specified address. GIODO also noted that Nasza-Klasa is still processing the personal data treating it as evidence, because it keeps them on its servers and in the system’s memory. GIODO finally held that the Company, as controller, is processing these data under provisions of Article 23(1)(v) of the PPD, under which such the processing of data is permitted because it is necessary for the purpose of the legitimate interests pursued by the controller and that the processing does not violate the rights and freedoms of the data subject. Among the reasons justifying the data processing, GIODO mentioned the possibility of establishing the responsibility of the recipient for violations of the Terms of Service that were set by the Company. This judgment is not final yet. GIODO filed a cassation complaint.

The Voivodeship Administrative Court in Warsaw in its judgment of 1 December 2010 case file II SA/Wa 1212/10 ruled that, these circumstances do not fulfill the conditions for legitimate interests of data processing. It should be noted that the condition relates to the existing and unquestionable situation, so if there is a need to demonstrate a need to claim in business, not a situation where the data are processed for eventual trial and the possible need to prove that personal data obtained without the consent of the person concerned shall be processed in accordance with the law. The Court also noted that Tomasz W. only announced but he did not initiate any courts proceedings against Nasza-Klasa. Therefore, according to the Court, Nasza-Klasa was not allowed to process personal data only to protect itself against any future and uncertain claims mentioned by Tomasz W. Otherwise, there are doubts how long to process personal data if Tomasz W. fails to comply with his announcement.

Tax law, case I SA/Wr 1080/10

November 27th, 2010, Tomasz Rychlicki

The Voivodeship Administrative Court in Wrocław in its judgment of 24 November 2010 case file I SA/Wr 1080/10 ruled that the client can deduct all the VAT in case of advance payment of fees for the entire period of software maintenance. The position of a tax authority stating that deduction is possible only in the settlement period in which service will be completely provided, is incorrect. It is another judgment favorable to taxpayers.

Patent law, case file II GSK 85/11

November 22nd, 2010, Tomasz Rychlicki

The Voivodeship Administrative Court in Warsaw in its judgment of 30 June 2010 case file VI SA/Wa 595/10 held that the terms “solution of a technical nature” or “technology” are not defined in the European Patent Convention. Thus, the development of these concepts depends on the practice of the EPO. There is no doubt that in practice, the EPO is using much more liberal criteria for assessing the patentability of computer-implemented inventions than in the initial period of application of the EPC. However, this position was not accepted by all parties to the Convention. In addition, the Enlarged Board of Appeal on 12 May 2010, refused to resolve the problem presented by the President of the EPO, on the interpretation of the exclusion of computer programs “as such” in the context of the criteria for patentability of inventions relating to computer programs, leaving the question to practice. It can be concluded that the practice of liberalization of evaluation criteria for patentability of computer-implemented inventions was not accepted by all experts of the EPO. There are cases of the EPO that were based on the same provisions of the Convention but came with divergent decisions, as well as cases in which almost identical provisions of the Convention and national laws are interpreted, respectively, by the EPO or national bodies in different ways. This case concerned the International Patent Application PCT/EP99/08958 “Record carrier, apparatus and method for playing back a record carrier, method of manufacturing a record carrier”.

The Supreme Administrative Court in its judgment of 19 March 2012 case file II GSK 85/11 reversed the contested judgment and the decision of the PPO. The Court held that the decree of the President of the Polish Patent Office on the patentability of inventions has an internal character, and it can not be the basis of the justification of the decision.

Tax law, case III SA/Wa 1008/10

September 14th, 2010, Tomasz Rychlicki

The Polish company conducts its business based mainly on providing IT services and sales of software and hardware. The Company enquired the Tax Office whether the fees paid by it to the contractors based in the U.S. and the Netherlands in connection with making available of software, are subject to the flat tax at source of the distribution of software, i.e. in Poland.

The Voivodeship Administrative Court in its judgment of 13 September 2010 case file III SA/Wa 1008/10 held that fees paid for the use of a computer program does not fall within the definition of royalties specified in the agreements on avoidance of double taxation with Holland and the USA. Therefore can not be taxed in Poland.

Telecommunications law, case I OSK 1079/10

August 3rd, 2010, Tomasz Rychlicki

This is the continuation of a story described in “Personal data protection, case II SA/Wa 1598/09“. The Supreme Administrative Court in its order of 15 July 2010 case file I OSK 1079/10 decided to stay the execution of the decision issued by the Inspector General for Personal Data Protection (GIODO) and ruled that the Polish Act of 16 July 2000, Telecommunications Law – TLA – (in Polish: Prawo telekomunikacyjne), published in Journal of Laws (Dziennik Ustaw) No 171, item 1800 with subsequent amendments, provides broader protection of personal data because of telecommunications confidentiality, than the provisions of the Act of 29 August 1997 on the Protection of Personal Data – PPD – (in Polish: Ustawa o ochronie danych osobowych), Journal of Laws (Dziennik Ustaw) of 29 October 1997, No. 133, item 883, unified text published in Journal of Laws (Dziennik Ustaw) of 6 July 2002, No. 101, item 926, with subsequent amendments.

The Court held that the disclosure of IP addresses which enable identification of specific individuals, that was ordered during administrative proceedings initiated with regard to disclosure of such data, while such proceedings did not ended with judgment in force, may violate the provisions of Article 160 of the TLA.

Article 160.
1. An entity participating in the performance of telecommunications activities within public networks and entities cooperating with it shall keep the telecommunications confidentiality.
2. Entities referred to in paragraph 1 shall maintain due diligence, within the scope justified by technical or economic reasons, while securing telecommunications equipment, telecommunications networks and data collections from disclosing the telecommunications confidentiality.
3. A person coming into possession of a message not meant to be read by him/her when using radio or terminal equipment shall keep the telecommunications confidentiality. The provisions of Article 159 (3) and (4) shall respectively apply.
4. The recording of a message acquired in a manner described in paragraph 3 by a body executing control of telecommunications activities in order to document a violation of a provision of the Act, shall not be a violation of the telecommunications confidentiality.

While assessing the validity of the request to stay the execution of GIODO’s decision to disclose the requested IP address at this stage of proceedings, the Court agreed with the author of the cassation complaint, that the execution of the questioned decision at this stage makes it impossible to reverse the actions taken after the disclosure of the IP addresses, and such action should be seen as causing the effects that are difficult to reverse according to Article 61(3) of the Act on the Law on proceedings before administrative courts – PBAC – (in Polish: Prawo o postępowaniu przed sądami administracyjnymi) of 30 August 2002, Journal of Laws (Dziennik Ustaw) No 153, item 1270, subsequent later amendments.

§ 1 Filing a complaint does not stay the execution of the act or actions.

(…)

§ 3 After the delivery of a complaint to the court, the court may issue at the request of the applicant, the order to stay the execution, in whole or in part of the act or actions referred to in § 1, if there is a risk of causing significant damage or cause to be difficult to reverse, with the exception of the provisions of local law which entered into force, unless the special Act excludes the stay of their execution. The refusal to stay the execution of the act or actions by the authority, does not deprive the applicant of action to the court. This also applies to acts issued or adopted in all proceedings conducted within the same case.

The SAC held that if the Supreme Administrative Court would agree with the cassation complaint filed against the judgment of the Voivodeship Administrative Court of 3 February 2010 case file II SA/Wa 1598/09, the effects of the execution of the questioned decision could not be reversed, because the IP address identifying a specific person is available to another participant in the proceedings. Accordingly, the court held that the correct solution at this stage of proceedings, is to stay the execution of the questioned decision also with a view to the impact of which its execution might result in, as well as the nature of the protection of personal data resulting from the relevant regulations such as, inter alia, the TLA.

Personal interest, case VI ACa 1402/09

July 16th, 2010, Tomasz Rychlicki

The Appellate Court in Warsaw in its judgment of 15 July 2010 case file VI ACa 1402/09 held that even if a website only republishes articles or summaries of works published in major periodicals, it is not absolved from responsibility for infrigement of personal interests of a person who was described in such an article.