The District Court in Wrocław in a judgment of 18 March 2010, case file I C 1272/09, ruled that the advertising of one of the Polish banks that promoted payment cards in such a way that it used profile pictures of users of nasza-klasa.pl website infringed their personal rights. A user who logged into his or her profile was presented with an advertising that showed his or her face/image placed on credit card together with a slogan “your card for your personal account may look like this”. The Court held that users agreed to the provisions of the terms of service, but the permission to use their pictures concerned solely the purpose of social networking, not advertising. The Court ordered the owner of nasza-klasa.pl to pay the plaintiff 5000 PLN as a compensation. This judgment is not yet final.
Archive for: computer law
Social networking sites, case I A Ca 1202/09
March 3rd, 2010, Tomasz RychlickiNasza-Klasa.pl website is a very popular Polish social networking service bringing together classmates. It provides its users with a possibility to contact and search for old friends. In 2008, an unknown person created an account for the name of Dariusz B., The fake profile included his personal data: name, place of residence, phone number, age and images. This account was set without the knowledge and the consent of Dariusz B. Many offensive comments were sent from this fake account to other users of the portal. These comments provoked negative emotions and responses from its recipients. Dariusz B. and his wife, tried to apologize to every person they met. Dariusz B. was also forced to change his phone number, and met with harsh comments from friends, and especially from the strangers. Maria B. – wife of Dariusz B. contacted Nasza-Klasa.pl by e-mails with the request to remove or to block the fake account. When it did not bring any results, they brought a lawsuit against Nasza-Klasa.pl.
Nasza-Klasa.pl was found responsible by both the District and the Apellate courts because it has not removed, or at least not immediately blocked the fake account, created in the name of Dariusz B., thereby making violations of his personal interests possible.
The Appellate Court in Wrocław in a judgment of 15 January 2010, case file I A Ca 1202/09, DOC file, ruled that nature of the infringement performed by Nasza-Klasa.pl was to allow a third party to encroach on personal rights of Dariusz B., by not fulfilling its obligations under the Polish Act of 18 July 2002 on Providing Services by Electronic Means – PSEM – (in Polish: ustwa o świadczeniu usług droga elektroniczną), Journal of Laws (Dziennik Ustaw) No. 144, item. 1204, as amended.
Article 14
1. A person who gives access to the contents of a network IT system to a customer, where the customer stores data, is not aware of the illegal features of the data or activity connected with the data and upon receiving an official notification or credible information about the illegal features of the data or activity connected with it, immediately bars access to the data, shall not be responsible for the data.2. A Service provider who has received the official notification of an illegal character of the stored data that was supplied by the customer, and prevented the access to the data, shall not be liable to the customer for damages resulting from preventing access to such data.
3. A service provider who has received credible information of the illegal character of the stored data supplied by the customer and prevented access to the data, shall not be liable to the customer for the damage resulting from preventing access to such data, if it has immediately notified the customer of the intention to prevent access to data.
According to the Court, Nasza-Klasa.pl did not immediately block, and then delete the questioned fake account. Therefore, it forced Dariusz B. to bear a humiliating behavior caused by another person, which in consequence violated his serenity, good mood, sense of personal dignity, i.e. his personal interests. However, the Court did not agree with the argument that the standard of conduct, professionalism, requires the administrator to filter and delete statements that violate the law or may violate the law in an objective view, without a prior notice regarding such event. Putting such a requirement would be contrary to the provisions of Articles 14 and 15 in connection with Article 12 of the PSEM.
E-access to public information, case II SAB/ Wa 57/09
February 18th, 2010, Tomasz RychlickiIn 2008, the Polish media reported a story on the Polish Post which allegedly tested a system that scans envelopes and parcels. There were rumours that information gathered by such scanning could be used by the Internal Security Agency (ABW). ABW denied, but the Inspector General for Personal Data Protection has decided to investigate how the collected data are processed during the scan.
Roman P. has requested the GIODO to make available the results of the investigation. Since Roman P. filed his request by phone and then by e-mail, the GIODO informed that it will consider the request only after it receives personal data of Roman P.
The GIODO based its opinion on the provisions of article 63 § 3 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.
§ 1. Applications (requests, explanations, appeals, complaints) may be filed in writing or by telegram, telex, fax, email or by using the form available on the website of the competent public administration, allowing data entry into the communications system of the body, as well as verbally to the protocol.
§ 2 The application shall include at least an indication of the person from whom it comes, its address and it shall satisfy other requirements stipulated in the special regulations.
§ 3 The application submitted in writing or orally to the protocol shall be signed by the applicant, and also by an employee who made the protocol. When the application is filed by a person who can not or do not know how to make a signature, the application or a protocol is signed by other person authorized, by making a reference next to the signature.
The GIODO decided that the application filed by Roman P. shall indicate the person from whom it derives, its address and the scope of the request, otherwise, the request will not be examined.
Roman P. brought a complaint to the Voivodeship Administrative Court (VAC) in Warsaw. The VAC in a judgment case file II SAB/ Wa 57/09, ruled that the GIODO failed to act and ordered the Inspector General for Personal Data Protection to examine Roman P. request within 14 days because information he demanded, is deemed as the public information as defined in article 5(2) 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 later amendments. The Court also ruled that arguments and findings to leave the application without further examination, because it was sent by e-mail, have no support in the APC.
See also “Polish case law on e-access to public information“.
Personal data protection, case I OSK 667/09
February 13th, 2010, Tomasz RychlickiOn 15 January 2008, Tomasz W. filed with the General Inspector for Personal Data Protection (GIODO) a complaint concerning an unauthorized processing of personal data carried out by the Polish company Nasza Klasa Sp. z o.o. from Wroclaw, the owner of nasza-klasa.pl website. He informed the GIODO, that this very popular Polish website on classmates, hosts a photo featuring his image together with a list of names of other photographed people attached to it. Tomasz W. has repeatedly appealed to the website administrators with the request to remove his name from the list. However, he received no response from Nasza Klasa company.
As a result of the investigation, the GIODO found that on 31 December 2007, a registered user of nasza-klasa.pl posted classmates’ photo featuring students of a primary school. On the same day, another registered user, placed the names of people who were portrayed at the photograph – including the name and surname of Tomasz W. On 2, 9 and 14 January 2008, Tomasz W. requested Nasza Klasa Sp. z o.o. the removal of his personal data.
In a decision of 27 May 2008, case file DOLiS/DEC-314/08/13239, the GIODO, relying on the provisions of the Polish 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 later amendments, ruled that information on the applicant’s full name, school and class to which he attended, together with his image, are personal data and the data collector is Nasza Klasa Sp. z o.o.
However, the GIODO also ruled that it should be borne in mind that according to the provision of the Polish Act of 18 July 2002 on Providing Services by Electronic Means – PSEM – (in Polish: ustwa o świadczeniu usług droga elektroniczną), Journal of Laws (Dziennik Ustaw) No. 144, item. 1204, as amended, Nasza Klasa sp. z o.o. provides electronic services for registered users of the portal website, consisting of the storage of data of these users in the computer system. This activity is the condition to legalize the processing of personal data in accordance with article 23(1) pt. 5 of the PPD. In addition, the GIODO found that in this case the applicant’s rights have not been violated, because the access to its data was limited to a group of people registered on nasza-klasa.pl website.
Tomasz W. asked the GIODO for the retrial. He pointed out that the reasons for the decision have many contradictions, inconsistencies and is ambiguous. He accused the GIODO of laconic and cursory treatment of his case. He again emphasized that his personal data have been published on the nasza-klasa.pl website without his knowledge or consent, in violation of his civil rights and liberties.
After the rehearing of the case, the GIODO annulled the contested decision, and discontinued the proceedings. GIODO claimed that the re-examination of the case leads to the conclusion that the disputed information about Tomasy W. did not fall within the definition of personal data. The name and surname have been given under his old image from many years ago. Hence, the combination of photos from the past, with a name and surname of a person and a primary school, which such person attended did not allow for the identification of a person without excessive costs and time. The findings that the disputed information is not personal data within the meaning of the PPD caused the proceedings in the matter to be groundless and on the basis of article 105 § 1 of the APC, it had to be discontinued.
Tomasz W. lodged a complaint with the Viovodeship Administrative Court (VAC) in Warsaw. The complainant asked for annulment of the decision of first and second instance. Tomasz W. claimed the violation of the substantive law, i.e. article 6(1) of the PPD, through its improper interpretation, of article 32(1) pt 7 and 8 of that Act, by recognizing that Tomasz W. is not entitled to request cessation of the processing of his data and the right to object, and a breach of article 7 of the APC by not explaining all the relvant facts. Tomasz W. disagreed with the statement of the GIODO that questioned information about his person is not personal data within the meaning of the PPD. He stated that any information about an identified or identifiable individual is personal data. Furthermore, he argued that the claim of the GIODO that the data are available only for specific people – registered users of the portal is not acceptable, because nasza-klasa.pl has no mechanisms for verification of users identity, which makes the questioned data easily accessible for everyone. Moreover, Tomasz W. also argued that a registered user who does not know him would have some difficulty in identifying his person but such obstacles would not happen to a person who knows about Tomasy W., and is looking for additional information.
The Voivodeship Administrative Court in a judgment of 3 March 2009 case file II SA/Wa 1495/08 ruled that the GIODO erred in its decisions, because information about the name and surname of Tomasz W., combined with information about the name and address of the primary school and the determination of the class to which he attended in 1978/79, even if it was thirty years ago, are personal data. According to the Court provisions of article 1 of the PPD introduced the principle of autonomy of human information, meaning the protection of information about human being. This provision is a kind of emanation of the general right guaranteed by the Polish Constitution in article 47, according to which “Everyone shall have the right to legal protection of his private and family life, of his honour and good reputation and to make decisions about his personal life”. This means that the protection of personal data is related to the protection of privacy rights. This follows from the wording of article 6 of the PPD, indicating that the personal data concern identified or identifiable natural or legal person and that the identifiable is a person is one whose identity can be determined. From wording of that provisions the VAC concluded that personal data are data that identify a person’s identity.
The VAC also relied on the content of recital 12 of the Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data, which emphasized the protection of all data relating to a person, and therefore also information about someones past.
(12) Whereas the protection principles must apply to all processing of personal data by any person whose activities are governed by Community law; whereas there should be excluded the processing of data carried out by a natural person in the exercise of activities which are exclusively personal or domestic, such as correspondence and the holding of records of addresses
However, in recital 26 of the abovementioned Directive states that data protection rules must apply to any information concerning an identified or identifiable person. In order to determine whether a person is identifiable, all the means which can be used by the controller or any other person to identify a person, should be taken into the account. The rules of data protection do not apply to data rendered anonymously in such a way that a subject of the data can not be identified. The identification of a given person concerns also past information about a specific human being, by which information one can learn about such person’s identity. Accordingly, the VAC held that European law means the protection of personal data as the protection of all the facts concerning the past of a particular person, which corresponds with the content of article 6(2) of the PDP. So this means that such data would also be protected.
Referring to the foregoing facts of Tomasz W. case, the VAC ruled that that nasza-klasa.pl website published his image and name. In the opinion of the court these are the personal data which are protected by the PPD, because on their basis one is able to identify given person.
Nasza Klasa sp. z o.o. filed a cassation complaint with the Supreme Administrative Court (SAC) challenging in entirety the judgment of the VAC. The Supreme Administrative Court in a judgment of 18 November 2009, case file I OSK 667/09, rejected the complaint. The SAC held that the primary issue arising in this case was whether a classmates’ picture that was taken thirty years ago, at which Tomasz W. is potrayed, in the circumstances of the case, can be analyzed to determine his identity without necessarily involving excessive resources or time, and therefore, whether the data disclosed in the photo in question, constitutes personal data within the meaning of article 6 of the PPD, and whether it should be protected.
The concept of “personal data” on the Polish law includes any information concerning an individual if it is possible to define its identity and its identification. Personal data is a set of messages about a particular person such integrated that it allows for its individualization. It includes at least information necessary for identification (name, surname, place of residence), but this is not restricted, because it also include further information, strengthening the degree of identification. Such information will also include pictures of the individual, even if they were taken in the past, allowing to identify a person. In a situation where such a photograph is presented with a name and surname of the person portrayed, in a place accessible to an unlimited number of entities, it must be considered that it constitutes personal data subject to protection under the PPD. Mainly, the objective evaluation criteria decides for the qualification of given information as personal data, but it also should comprise of all information, including extralinguistic (context), to which third party may have or has an access. A different approach to the presented issues would maginalize the importance of the laws and it would not relate to its designated function.
Thus it should be considered that the image of Tomasz W. portrayed at the photograph that was taken 30 years ago, affixed with the class, his name and surname, and then published at nasz-klasa.pl website constitutes personal data within the meaning of article 6(2) of the PPD, and the cassation complaint was not justified. The SAC also noted that the consent for the processing of personal data cannot be in any way implied.
The SAC also stressed the fact the Internet as a source of information is increasing on a unknown scale and importance. It provides an access to specific information to a vast number of persons and allows for any of its processing within the meaning of the PPD. At the same time there are not yet developed appropriate mechanisms for the protection of individual rights when those rights have been violated as a result of the disclosure of information on the Internet. Then, it is a great role of law enforcement bodies, including the Inspector General for Personal Data Protection in creating practice to comply with applicable laws also on the Internet. It is an unacceptablr situation in which the entity seeks to remove its image from a particular website, and the administration fails to take action to ensure the protection of civil rights. The image is one of the very personal property rights and lack of consent to its publication, if it is not a public person, is a sufficient reason to believe that regulations of the PPD apply, if the conditions set in the article 6(2) of the PPD have been met. There is a legal sequel to this story. See “Personal data protection, case II SA/Wa 1212/10“.
See also “Polish regulations on personal data protection” and “Polish case law on personal data protection“.
Computer crime, case V K 1595/08
February 9th, 2010, Tomasz RychlickiArnold Buzdygan brought a private accusation before the Regional Court for Wrocław Śródmieście V Criminal Division against Olgierd Rudak. The indictment was based on articles 212 § 2 and 216 § 2 of the Criminal Code – CRC – (in Polish: Kodeks Karny) of 6 June 1997, Journal of Laws (Dziennik Ustaw) No 88, item 553, with later amendments.
Article 212. § 1. Whoever imputes to another person, a group of persons, an institution or organisational unit not having the status of a legal person, such conduct, or characteristics that may discredit them in the face of public opinion or result in a loss of confidence necessary for a given position, occupation or type to activity
shall be subject to a fine, the penalty of restriction of liberty or the penalty of deprivation of liberty for up to one year.
§ 2. If the perpetrator commits the act specified in § 1 through the mass media
shall be subject to a fine, the penalty of restriction of liberty or the penalty of deprivation of liberty for up to 2 years.Article 216
§ 1. Whoever insults another person in his presence, or though in his absence but in public, or with the intention that the insult shall reach such a person,
shall be subject to a fine or the penalty of restriction of liberty .
§ 2. Whoever insults another person using the mass media, shall be subject to a fine, the penalty of restriction of liberty or the penalty of deprivation of liberty for up to one year.
The court in Wroclaw was obliged ex officio under article 35 § 1 of the Criminal Proceedings Code – CRPC – (in Polish: Kodeks Postępowania Karnego) of 6 June 1997, Journal of Laws (Dziennik Ustaw) No 89, item 555, with later amendments, to examine its jurisdiction and if found otherwise, to refer the case to the court with the proper one. The Court in Wrocław held that pursuant to article 31 § 1 of the CRPC, the jurisdiction is where the offense was committed (the teritorial jurisdiction).
Buzdygan claimed that the offense was commited in the article entitled “Trolls scour in the Net” which was published in the Polish magazine Przekrój of 11 November 2007, in addition the allegedly defamatory content was broadcasted by TV stations such as TVN, Polsat and TVP, in their news and in the Internet. Judge Jolanta Pol-Kulig had to decide on the location of the Internet.
[b]oth the editorial office of Przekrój and the abovementioned TV stations and the Internet are located in Warsaw, one should consider that the commitment of a crime to the detriment of the private prosecutor was performed in that place.
The court in an order of 31 December 2008, case file V K 1595/08, referred the case to the Regional Court for Warszawa Śródmieście II Criminal Division. Interestingly, the court in Wrocław did not consider that the alleged offense was not committed.
See also “Personal rights, case I ACa 949/09“.
Personal interest, case I ACa 949/09
February 9th, 2010, Tomasz RychlickiSince a couple of years he is a very controversial figure of the Polish Internet and he also has become the cause of two interesting judgments which I am going to report. Arnold Buzdygan appeared on different Polish newsgroups, where he wrotre, inter alia, on topics such as copyright, sexology, psychology and politics. His style of writing was, at least, very controversial. Due to the vulgarity of some of his statements (he claimed that such actions were performed by his followers who allegedly used his name), offers to make a bet and announcements of lawsuits and threats of beatings, a part of the Usenet community defined these behaviors as trolling and such informations was posted in the Polish Wikipedia’s entry devoted to Buzdygan’s persona. Arnold Buzdygan decided to sue.
In the petition for libel filed against the Association Wikimedia Poland and Agnieszka K., he demanded an order to remove the existing contents of the article Arnold Buzdygan in both English and Polish-language versions of Wikipedia, and to put the apology instead of these entries, and to block the possibility of future edition of the questioned article, He also requested the Court to order the Association Wikimedia Poland to pay him the compensation of moral injury and the costs of the process in the sum of 100000 PLN.
In the response to a petition, the Association of Wikimedia Poland requested the Court to dismiss the claim, pointing that such charges cannot be brought against it because of the lack of the so-called “passive legitimacy”. Wikimedia Poland stated that neither the Association itself, or persons acting on its behalf are not engaged in editing of the article on Arnold Buzdygan, Wikimedia Poland argued that it is not a database administrator of Wikipedia or administrator of the servers on which the information is stored, so it would not be possible to remove or permanent blocking of such entries.
The District Court in Wrocław dismissed the suit in judgment of 8 June 2009, case file I C 802/07. Buzdygan appealed, and his petition was dismissed by the Appellate Court in Wrocław in a judgment of 17 November 2009, case file I ACa 949/09, published in Orzecznictwo Apelacji Wrocławskiej, Biuletyn Sądu Apelacyjnego we Wrocławiu, No 1 (13), p. 5, Year MMX. The court ruled that the statements published in the disputed article and the mention of trolling do not infringe on Buzdygan’s personal rights. Descriptions of Buzdygan’s activity on different forums, though they may have a pejorative connotation, were the evaluation of the expression of views issued by Arnold Buzdygan, not the description of himself. The wording that was challenged by Buzdygan does not refer to his person, but it concerned the way of formulation of his speech in a public discussion, and the measure of negative evaluation did not exceed the permissible limit.
An active participant of online forums, being a well-known and recognizable in such community is, in this sense, a “public personality”. As a public person, participating in discussions, one agrees and must reckon with the fact that his or her opinions and statements will be subjected to criticism by other users, sometimes very radically and one has to demonstrate greater tolerance and even resistance to unfavourable and unflattering opinions, and even violent attacks. The boundaries of acceptable criticism are wider in fact, than in the case of persons not participating in such discussions. The evidence proceedings during the hearings has shown that Buzdygan was and is very active participant in online forums, and he is a known figure. By applying the test of the higher degree of tolerance for unflattering opinions, the Court found that the wording of the Wikipedia entry devoted to Arnold Buzdygan did not exceed the agreed and acceptable standard.
See also “Computer crime, case V K 1595/08“.
Internet domains, case I ACa 272/06
February 8th, 2010, Tomasz RychlickiThe Appellate Court in Katowice, in a judgment of 16 June 2006, case file I ACa 272/06, ruled that it is pointless to talk about the “ownership” of Internet domains, because the civil law sets the property rights in article 140 of the Civil Code, which only refers to tangibles, and domains are not such things, and further, due to the closed list of property rights in intangibles (the so-called numerus clasus of IP rights – the principle that the system of estates allows only a limited number of property rights available in a legal system), there are no regulations in the Polish law, which suggests that the effect of registering Internet domain names is, to acquire by the subscriber, the right to use and dispose of the domain. The agreement between the subscriber and the Internet domain registrar is a contract to provide telecommunications services within the meaning of article 1(1) of 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 later amendments. The subscriber may transfer his or her claims (contractual claims against the registrar) to another entity, if it comes with the assumption of debt from subscriber fees.
I realize that this differs significantly from the US law. Easpecially if you read Kremen v. Cohen, 335 F.3d 1035, (9th Cir. 2003).
The parties do not dispute that domain names are a kind of property. This proposition appears to be consistent with California’s broad definition of “property.” See Cal. Civ.Code §§ 654 & 655(property includes “all inanimate things which are capable of appropriation or of manual delivery”). The parties disagree, however, whether a domain name like sex.com is the kind of intangible property that can support a claim for conversion. At issue is whether such intangible property constitutes a sufficiently definite right and whether such intangible property must also be merged into a document or other writing.
Same opinions were issued in Harrods, Ltd. v. Sixty Internet Domain Names, 302 F.3d 214 (4th Cir. 2002), Caesars World, Inc. v. Caesars-Palace.Com, 112 F. Supp. 2d 502 (E.D. Va. 2000) or In re Larry Koenig & Assoc., 2004 WL 3244582 (Bankr. M.D. La. 2004). But there are also different judgments such as Dorer v. Arel, 60 F. Supp. 2d 558 (E.D. Va. 1999), Zurakov v. Register.com, Inc., 304 A.D.2d 176, 760 N.Y.S.2d 13 (1st Dep’t 2003), Network Solutions, Inc. v. Umbro International, Inc., 259 Va. 759, 529 S.E.2d 80 (2000) and the latest I know which is Palacio del Mar Homeowners Assn., Inc. v. McMahon, — Cal.Rptr.3d —, 2009 WL 1668294 (Cal. App. 4 Dist. June 16, 2009). The Court ruled that a domain name registration is not property, but merely supplies the intangible contractual right to use a unique domain name for a specified period of time. Does it sound familiar to you?
See also “Polish case law on domain names“.
Personal data protection, case I OSK 1079/10
February 5th, 2010, Tomasz RychlickiAccording to lawyers representing the singer Maryla Rodowicz, on the forum of one of the Polish portal websites appeared entries with the content which allegedly violated her personal rights (interests). The lawyers requested the owner to reveal IP addresses of users who posted these entries. The administrator of the portal website deleted the disputed entries but did not reveal any of the IP addresses. Lawyers filed a request to the Inspector General for Personal Data Protection (GIODO), who ordered the portal to disclose IPs on the grounds that these numbers are personal data. The owner of the portal again refused. The case went to the Voivodeship Administrative Court (VAC) in Warsaw, which in a judgment of 3 February 2010, case file II SA/Wa 1598/09 upheld the decision of the GIODO. The company who owns the portal may file a cassation to the Supreme Administrative Court (SAC). The VAC judgment provides the interpretation that IP address is a personal data, in accordance with the statutory definition included in article 6 of the Polish 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 October 29, 1997, No. 133, item 883, unified text published in Journal of Laws (Dziennik Ustaw) of July 6, 2002, No. 101, item 926, with later amendments.
Article 6
1. Within the meaning of the Act personal data shall mean any information relating to an identified or identifiable natural person.
2. An identifiable person is the one who can be identified, directly or indirectly, in particular by reference to an identification number or to one or more factors specific to his/her physical, physiological, mental, economic, cultural or social identity.
3. A piece of information shall not be regarded as identifying where the identification requires an unreasonable amount of time, cost and manpower.
The VAC also noted that the IP address is personal data if it is permanently assigned to the specified device, and that device is used or operated by a specified entity. This dependence makes certain, in given situations, that there is the possibility of identifying such entity. The Court said that it is true that the IP address itself is not sufficient to identify a person who use it, but together with other information a person can be identified. Grupa o2, the owner of a portal website filed a cassation complaint.
The Supreme Administrative Court in its judgment of 19 May 2011 case file I OSK 1079/10 dismissed the complaint and decided that information on the date and contents of the posts that are correlated with IP addresses, allows for unambiguous determination of identity of persons who have violated someone’s personal interests.
There was another court’s decision with regard to the aforementioned case and the disclosure of IP addresses. See “Telecommunications law, case I OSK 1079/10“. The U.S. courts and judges have quite different views on this issue. Read for example Johnson v. Microsoft Corp., 2009 WL 1794400 (W.D. Wash. June 23, 2009).
See also “Polish regulations on personal data protection” and “Polish case law on personal data protection“.
E-signatures in Poland
January 29th, 2010, Tomasz RychlickiCurrent Polish legislation on e-signature include the Act of 18 September 2001 on Electronic Signature – ESA – (in Polish: ustawa o podpisie elektronicznym) Journal of Laws (Dziennik Ustaw) of 15 November 2001, No 130, item 1450, with later amendments. The ESA introduced in article 3 two types of e-signature: “electronic signature”, which means data in electronic form which, together with other data, either attached thereto or logically associated therewith, are capable of identifying the signatory and the so-called “secure electronic signature”, which means electronic signature which is uniquely assigned to the signatory, is made using secure signature-creation device and signature-creation data that the signatory can maintain under his sole control, is related to the data to which it has been attached in such a manner that any subsequent change of the data is recognizable.
According to article 5 of the ESA, the data in electronic form bearing a secure electronic signature verified by a valid qualified certificate shall be legally recognized as equivalent to documents bearing handwritten signatures. A secure electronic signature verified by a valid qualified certificate shall ensure the integrity of the data bearing the signature and unambiguous indication of the qualified certificate by assuring that any subsequent changes of the data and any subsequent changes of the indication of the certificate used to verify the signature are recognizable.
Recently, the Polish Ministry of Economy proposed amendments to the ESA. The draft provides new types of e-signatures that are consistent with the Directive 1999/93/EC of the European Parliament and of the Council of 13 December 1999 on a Community framework for electronic signature.
The draft provides 4 types of e-signature: normal, advanced, personal and certified. The normal one will be the same features as present “electronic signature” as defined in article 3 of the ASA and will primarily serve as a declaration of identity.
The advanced e-signature will have to meet the additional requirements for certification of the person using it. It will certify the data integrity and allow you to establish the identity of the signatory to both individuals and legal persons, such as when submitting electronic invoices.
The data in electronic form signed by a qualified (secure) electronic signature will have specific legal effects – the same as a handwritten signature for the data recorded on paper. Such data will be admissible as evidence in legal proceedings. The signature will be used to sign statements of knowledge and will.
E-promulgation of Polish law
January 5th, 2010, Tomasz RychlickiThe Act of 10 September 2009 on amending the Law on the promulgation of normative acts and some other legal acts, Journal of Laws (Dziennik Ustaw) of 2009, No 190 item 1473, came into force on 1 January 2010. According to the amendments, the Journal of Laws and the Polish Monitor or normative acts and other legal acts contained in them, including judgments, are made available freely for inspection and to download in the form of an electronic document from the website of the Government Legislative Center.
The minister responsible for informatization will also determine, by a regulation, the technical requirements to be met by electronic documents addressed for the announcement, containing normative acts and other acts, including judgments, taking into account the need to preserve the unity of supplied electronic documents and their possible transformation for the issue of the official journal.
Computer crime, case II K 320/07
December 14th, 2009, Tomasz RychlickiDo you remember Cohen v. Google, Inc., 2009 WL 2883410 (N.Y. Sup. Ct. Aug. 17, 2009)? If not, just see this short description available at citmedialaw.org website. And it looks like we will have a similar case in Poland. The Polish court wants Google to reveal its users data.
In the articled entitled “Google ma ujawnić e-maile“, the Polish newspaper Rzeczpospolita reports recent case of Jakub Świderski. Mr Świderski is a former councillor of Sopot town and a party of a criminal suit brought against him based on a private accusation/charge by Jacek Karnowski, the President of Sopot, (who has been served with seven corruption charges) and his former deputy Cezary Jakubowski. Karnowski and Jakubowski argue that they were insulted and offended by statements allegedly published by Świderski in the onepage magazine “Obserwator sopocki” (in English: “Sopot’s Observer”) that was distributed during local elections in 2006. They also claim that their “public confidence” was jeopardized by Świderski’ actions.
“Obserwator sopocki” was published only three times in 2006. Authors of published texts suggested illicit trade premises and municipal corruption. Karnowski said he had been particularly offended by a photograph depicting his caricature with the envelope in his hand suggesting that he is taking bribes.
Mr Karnowski argues that Świderski was the publisher of “Obserwator sopocki”. The problem is that it has to be proven. The newspaper was distributed on the streets, it was not registered as the press, and the authors wrote under pseudonyms/nicknames: takata1, rzeźniksopocki, wasp. Świderski did not admit that these were his nicknames. So far, the only evidence Karnowski had, was a statement issued by Świderski in which he said “To ja jestem głównym “Obserwatorem”" (in English: “I am the leading “Observer”").
The secret trial before the Regional Court Gdańsk-Południe, case file II K 320/07, was started three years ago. Świderski was charged based on privisions of article 212 of the Criminal Code – CRC – (in Polish: Kodeks Karny) of 6 June 1997, Journal of Laws (Dziennik Ustaw) No 88, item 553, with later amendments.
Article 212. § 1. Whoever imputes to another person, a group of persons, an institution or organisational unit not having the status of a legal person, such conduct, or characteristics that may discredit them in the face of public opinion or result in a loss of confidence necessary for a given position, occupation or type to activity
shall be subject to a fine, the penalty of restriction of liberty or the penalty of deprivation of liberty for up to one year.§ 2. If the perpetrator commits the act specified in § 1 through the mass media shall be subject to a fine, the penalty of restriction of liberty or the penalty of deprivation of liberty for up to 2 years.
§ 3. When sentencing for an offence specified in §1 or 2, the court may adjudge a supplementary payment in favour of the injured person or of the Polish Red Cross, or of another social purpose designated by the injured person a supplementary payment (nawiązka).
§ 4. The prosecution of the offence specified in § 1 or 2 shall occur upon a private charge.
A few months ago Jakubowski and Karnowski requested the Court to issue an order for the disclosure of e-mail correspondence of Świderski. As Rzeczpospolita reports they asked the Court to exempt Google and Microsoft from the secrecy of correspondence, and to investigate by the Police of all IP addresses of persons, who corresponded with Świderski from July to November 2006. These are addresses registered at gmail.com and hotmail.pl.
Rzeczpospolita reports that Judge Ludwika Małkowska took into account the request of Karnowski to admit the evidence of “official secret information” and exempted Google Kraków (foreign controlled company whos parent company is Google). Judge Małkowska ordered Google Kraków to provide information on persons who registered e-mail addresses related to aforementioned nicknames, identities of all persons who have access to these accounts, from which IP addresses the correspondence was retrieved and what messages were sent to which of the e-mail addresses, together with their content. Judge Małkowska stated that in this case it is necessary to determine the person or persons responsible for the defamatory publications.
Patent law, case VI SA/Wa 2279/08
October 27th, 2009, Tomasz RychlickiThe Voivodeship Administrative Court in its judgment of 27 May 2009 case file VI SA/Wa 2279/08 ruled that the Polish Patent Office is not an authority that mechanically approves patents granted by the EPO. The Court held that if the dispute between the applicant and the Polish Patent Office related to the nature of the invention, as is was in this case, by refusing to grant a patent, the Patent Office in principle cannot merely on its own conviction as to the subject of the patent application. The PPO should seek to gather sufficient evidence to support its position. Such evidence could include witness-expert testimony. The absence of a comprehensive hearing of evidence and basing the questioned decisions mostly on its own belief in the recognition, what is the subject of the patent application, and such a situation took place in this case, justified the infringement of Articles 7, 77 § 1 and Article 107 § 3 of the APC, as having a significant impact on the outcome of the case.
Article 7
Public administration bodies shall uphold the rule of law during proceedings and shall take all necessary steps to clarify the facts of a case and to resolve it, having regard to the public interest and the legitimate interests of members of the public.(…)
Article 77.
§ 1. The public administration body is required to comprehensively collect and examine all evidential material.
§ 2. At each stage of proceedings a body can amend, supplement or withdraw rulings made regarding the examination of evidence.
§ 3. An body conducting proceedings as a result of having been required to do so by the body having jurisdiction to settle the case (Article 52) may, on an ex officio basis or on application by one of the parties, hear new witnesses or experts on circumstances that form the objects of such proceedings.
§ 4. Universally accepted facts and facts known to the body ex officio do not require proof. Parties to proceedings should be informed of facts that are known to the body.(…)
Article 107.
§ 1. A decision should contain: the name of the public administration body, the date of issue, the name(s) of the party or parties, the legal authority referred to, a ruling, a factual and legal justification, an advisory notice as to whether and how an appeal may be brought and the signature, name and position of the person authorised to issue the decision. Any decision which may be challenged by a petition to the civil court or a complaint to the administrative court should contain an advisory notice that such a petition or complaint may be brought.
§ 2. Other regulations may contain other elements which a decision should contain.
§ 3. The factual justification of the decision should contain the facts that the body regards as proven, the evidence relied upon and the reasons for which other evidence has been treated as not authentic and without probative force. The legal justification should contain the legal authority for the decision with reference to the relevant law.
§ 4. If the decision fully reflects the demands of the party then there is no need to provide a justification for the decision, but this does not apply to decisions in contentious cases and decisions given on appeal.
§ 5. A body can also dispense with a justification of a decision in such cases if under current statutory regulations there is a possibility of dispensing with or limiting the justification because of the interests of State security or public order.
The Court ruled that the PPO should make a thorough analysis of the concept of “technical character of the invention” and should indicate why it interprets it very narrowly, taking in this respect the view of the EPO. The PPO should also consider whether the European patent has been granted for the same solution, and examine the merits of different assessment of the invention in Poland. During the re-hearing of the case the PPO will will take the position whether the applied solution has been sufficiently disclosed, and if so, only then will further examine its patentability, given that one of the elements of assessing the patentability of the invention is a technical solutions. Due to the lack of legal definition of a “solution of a technical nature” in assessing a technical nature of the present invention the PPO is obliged to indicate what in the opinion of the PPO is deemed as “technical solution”. The PPO will assess the technical nature of the claimed invention and will refer to the applicant’s arguments, if the interpretation of that concept made by the PPO would continue to differ on how this concept is understood to the applicant.
Internet domains, case I ACz 364/08
October 1st, 2009, Tomasz RychlickiThe Appellate Court in Białystok in its judgment of 6 May 2008, case file I ACz 364/08 ruled that, the registration and use of the Internet domain name which is the same as someone else already existing domain, may be regarded as an act of unfair competition. The definition is provided in the article 3(1) of the Polish Act of 16 April 1993 on Combating Unfair Competition – CUC – (in Polish: ustawa o zwalczaniu nieuczciwej konkurencji), Journal of Laws (Dziennik Ustaw) No 47, item 211, with subsequent amendments.
Article 3
1. The act of unfair competition shall be the activity contrary to the law or good practices which threatens or infringes the interest of another entrepreneur or customer.
The court also noted that although the act of unfair competition takes place only when the arguing entrepreneurs can be regarded as competitors. However, there are not excluded situations where a website under a disputed domain name will be providing goods or services different from those associated with a given name on the non-virtual market. Also in such situation a person may request for the protection against violations of the rights to the domain name, especially when it is registered in order to block a domain by a competitor, if it identifies an inactive website or a webpage or a website which is not updated nor offering any goods. Registration of such domains leads to a substantial impediment to market access for other entrepreneurs, which is in violation of Article 15 of the CUC. Such actions, however, have also an economic overtone, and therefore they concern the economic rights.
See also “Polish case law on domain names“.
Personal rights, case II CSK 539/07
March 27th, 2009, Tomasz RychlickiQXL Poland sp. z o.o. is the owner of the allegro.pl auction website which removed the user account of a person (Cezary O.) using the nicknames CezCez, 2cez, 2xcez and espia. The company presented different reasons for its decision to remove the account and tried to justify such action by putting various statements about CezCez on its forum website “Cafe Nowe Allegro”. CezCez did not agree with QXL’s statements and sued. The court of first instance agreed with Cezary O.’s arguments and ruled that QXL Poland make a statement of apology as follows
Allegro.pl wishes to apologize to CezCez for using comments by one of its employees which publicly appeared on the New Cafe Allegro on 17 January 2003,– wording that implied CezCez was dishonest, he lies, he is selfish and that he pursues his own self-interest. These actions and comments affected the good name of CezCez, which was not the intention of QXP Poland.
The above statement was to be published on the Allegro.pl website but both parties appealed. The Appellate Court in Lodz did not share the conclusions of the court of first instance that the username (a nickname) used in internet services is personal right/interests (i.e. intangible personal property) eligible for protection under articles 23 and 24 of the Civil Code – CC – (in Polish: Kodeks Cywilny) of 23 April 1964, Journal of Laws (Dziennik Ustaw) No. 16, item 93, with later amendments.
Article 23
The personal interests of a human being, in particular to health, dignity, freedom, freedom of conscience, surname or pseudonym, image, secrecy of correspondence, inviolability of home, and scientific, artistic, inventor’s and rationalizing achievements, shall be protected by civil law independent of protection envisaged in other provisions.Article 24
§ 1 The person whose personal rights are threatened by someone else’s action, may require the desist of that action, unless it is not illegal. In the event of the infringement one may also require, the person who committed the violation, to fulfill the actions necessary to remove its effects, in particular, to make a statement of the relevant content and appropriate format. According to the conditions laid down in the Code one may also require monetary compensation or payment of an appropriate amount of money for a social purpose indicated.
§ 2 If as the result of a breach of personal rights one has suffered pecuniary prejudice, the aggrieved person may claim compensation based on general principles.
§ 3 The above shall not prejudice the entitlements provided by other regulations, in particular in copyright law and the patent (invention) law.
The Appellate Court did not agree with the arguments that the user name (a nickname) has parallels with a pseudonym. The case went to the highest court in a further appeal as a cassation complaint. The Supreme Court of Republic of Poland in a judgment of 11 MArch 2008, case file II CSK 539/07, dismissed the case for procedural reasons. However, the SC did not agree with conclusion of the Appellate Court with regard to protection of nicknames or usernames in the digital environment.
The court noted that a username fulfils a variety of functions. First, the creation of a username is a prerequisite to registering on the allegro.pl website in order to obtain its own account and so participate in auctions. A person using such a nickname may be a buyer or a seller. Secondly, a username allows a person to log into Allegro.pl website. In the process of logging in, the user is given a pair of identifiers, such as a username and password. Thirdly, the username/nickname identifies the individual in question in the online environment, in this particular case, in the environment of people using Allegro.pl services.
The individual is therefore recognised as a user using a specific nickname. The Supreme Court could not agree with the position of Court of Appeal that the nickname is purely a technical issue used to personalise the operation. On the contrary it argued, the username/nickname defines and characterises the person who uses such an auction site, bids on it, is the party to a contract of sale, issues comments or is involved in correspondence with other users.
The court found that
In some cases, participations in the auction website by a user using a specific name can be a source of information for other participants who know that this user typically takes part in an auction of that type, bids only to a certain amount of money, only on certain days, in a certain way, does not compete with users using specific names, that the user is honest, efficient and immediately carries out transactions, etc.”
The Supreme Court also ruled that a username identifies a specific natural person. A username consists of a series of signs and letters, and there are no counter-indications that a person who created his or her own username could use his or her own name, surname, artistic pseudonym, pen name, or alias or it could even be a natural person who is the agent and uses the company name (the firm) under which it operates its business.
It appeared to the court that in the assumption of a username by a person rather than his or her own name, the pseudonym (which has so far been used as an example in artistic activities) is meant as the assumption of a nickname in order to allow for individualisation of that particular person. The word “nickname” comes from the Greek language (“pseudonymos”–bearing a false name, falsely named) and it means a first name, last name or another name which someone uses to conceal his real name or surname.
The court found irrelevant the motivation of a person who takes a nickname which is used as a pseudonym only in the “internet environment” or that the nickname may only be associated with the activities of that particular person carried out within the scope of services offered by Allegro.pl, since it may also have a broader meaning and go beyond the services of Allegro.pl. Consequently, the court noted that a username is subject to legal protection on the same basis on which protection is granted for any name, pseudonym or firm name, under which a person has established its business (whether it is a company name or that of a private person). At the same time, the court found no reason to treat a username/nickname as a separate personal right.
Telecommunication law, case I CSK 332/08
February 9th, 2009, Tomasz RychlickiThe judgment of the Polish Supreme Court of 5 February 2009, case file I CSK 332/08 has been aptly commented in the title of Rzeczpospolita’s article “It is not allowed to set traps for subscribers“. Judge Krzysztof Pietrzykowski pointed out that the judgment is also about the prevention, because such cases may still occur. The operator, which benefits from providing customers with high-rate services has an obligations/duty to protect its subscribers against such traps. The principle should be different than the one that was used by TP SA (Telekomunikacja Polska S.A.). The blockade for such services should not be set on the customer’s request, it should be established by default and removed at customer’s request.