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Archive for: criminal law

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 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.

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.

Criminal law, case II Kp 366/10

March 11th, 2011, Tomasz Rychlicki

The Polish prosecutor decided to discontinue the proceedings against a man who allegedly changed the password to an e-mail account of another person. The IP address of a computer that was used to commit this act served as the only evidence. The Prosecutor stated that a lot of people had access to this computer, so it was difficult or almost impossible to determine the offender. The aggrieved person has made a complaint to the Regional Court in Otwock. The court in its decision case file II Kp 366/10 anulled the order of the prosecution and ruled that the Prosecutor should prepare additional evidence such as interrogation and confessions of witnesses.

Computer crime, case II K 127/10

October 21st, 2010, Tomasz Rychlicki

A young man was charged with the removal of computer data in the form of virtual objects belonging to a specific game avatar. He acted to the detriment of another person, without authorization, with an Internet account in the Massively Multiplayer Online Role-Playing Game – Metin2. According to the indictment he obtained access (login, password) to someone else’s account using a keylogger software. The charges were based on provisions of Article 287 § 1 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 287. § 1. Whoever, in order to gain material benefits, affects automatic processing or transmitting information, or changes or deletes record or introduces a new record on an electronic information carrier, without being authorised to do so,
shall be subject to the penalty of deprivation of liberty for a term of between 3 months and 5 years.
§ 2. In the event that the act is of a lesser significance, the perpetrator shall be subject to a fine, the penalty of restriction of liberty or the penalty of deprivation of liberty for up to one year.
§ 3. If the fraud has been committed to the detriment of a next of kin, the prosecution shall occur on a motion of the injured person.

The Regional Court in Sławno in its judgment of 19 August 2010, case file II K 127/10 found him guilty of committing the offense, and sentenced to 1 year of imprisonment, suspended for a three-year period of probation. The court also ordered him to pay a fine up to 20 daily rates (10 PLN for a rate, a total of 200 PLN) and placed under supervision by a probation guardian.

Computer crime, case XII K 32/10

October 20th, 2010, Tomasz Rychlicki

A locally practicing lawyer (advocate) from Kielce used the nickname “bondd007” and posted on an online forum, among others such comments that the Director of the Tax Office in Kielce “probably likes” when the manager of one of the departments “puts an ice cream” – the expression in Polish slang that means oral sex.

The Regional Court in Kielce in its judgment of March 2010 case file XII K 32/10, found the lawyer guilty of defamation. The Court held that such words insulted the manager, slander her to sexual contact with the principal in the workplace and thus exposed her to a loss of trust necessary for the position occupied. The District Court in Kielce in its judgment of 19 October 2010 upheld the judgment.

Computer crime, case IV Ka 266/11

September 20th, 2010, Tomasz Rychlicki

Mr Łukasz Kasprowicz publishes frequently different news and information about the municipal office at Mosina on his website (blog) available at mosina.blox.pl. Zofia Springer the Mayor of Mosina filed for a private charge against Mr Kasprowicz on the basis of Article 212 § 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 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.

The mayor felt insulted by some of the stories published by the blogger and concluded that the routine writing about her and the office is undermining its reputation. The Observatory of Media Freedom in Poland run by the Helsinki Foundation for Human Rights was present during the hearing as a person of trust, based on Article 361 § 3 of the the Criminal Proceedings Code – CRPC – (in Polish: Kodeks Postępowania Karnego) of 6 June 1997, Journal of Laws (Dziennik Ustaw) No 89, item 555, with subsequent amendments. During the hearing on 9 May 2010, Łukasz Kasprowicz was referred by the Court for a psychiatric examination (in search for the opinion of an expert psychiatrist), and the counsel for the defence was appointed by the Court.

The Regional Court in Poznań Stare Miasto in its judgment of 25 January 2011 case file VIII K 745/09/8 sentenced Łukasz Kasprowicz for three hundred hours of community service and prohibited Mr Kasprowicz from performing professional activities as a journalist for one year, which also means the annual ban on publishing articles on the Internet. Mr Kasprowicz appealed. The District Court in Poznań in its judgment of 8 June 2011 case file IV Ka 266/11 overturned the questioned judgment. The Court acquitted Mr Kasprowicz of 13 charges, and in the other two the Court decided to discontinue the case/proceedings due to the relatively low social harm of the actions. Zofia Springer filed a cassation complaint to the Supreme Court of the Republic of 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.

Computer crimes, case I KZP 7/10

July 9th, 2010, Tomasz Rychlicki

The Supreme Court in its order of 29 June 2010 case file I KZP 7/10 held that, the prescription of defamation crime is counted from the date of publication of the offensive content. This crime is defined in 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.

This issue was referred to the Supreme Court by the District Court, who had inquired whether the defamation is a crime of continuous nature, which means that in case of defamatory entry placed on the Internet, it is committed as long as entry is available on the website. Interestingly, the SC refused to answer this question but the Court deliberated very wide on this issue in the justification of the order. The Supreme Court ruled that on-line defamation is not a continuous crime, which would involve creating and maintaining the status recognized by law as unlawful. The Court was aware of the fact the interests of the victim are violated as long as the defamatory content is publicly available on a website. However, per analogy to the printed press, where the victim’s interests are harmed as long as there are archived copies of newspapers containing offensive words.

The Supreme Court held that the offense involving the placement of a defamatory content in the Internet as referred to in article 212 § 2 of the CC is committed at the moment to making an entry and not while removing it. This means that the perpetrator cannot be prosecuted with the private charge after a year from the time when the victim learned about the offender, but no later than the expiry of three years from the time it was committed.

Internet websites, case I C 1532/09

March 13th, 2010, Tomasz Rychlicki

The Observatory of Media Freedom in Poland run by the Helsinki Foundation for Human Rights reported on a case of Augustyn Ormanty, the mayor of Kalwaria Zebrzydowska town, who sued Tomasz Baluś, the administrator of naszakalwaria.pl website, for personal rights infringement after he found that the website hosted defamatory comments directed to his person. Mr. Ormanty decided to request the court to order the removal of 18 comments because he received negative response from Tomasz Baluś who claimed that these questioned statements put in the form of comments to information published at his website, are the individual opinions of people who wrote it, for the content of which, Tomasz Baluś is not responsible, because they are owned by their authors.

The District Court I Civil division in Kraków in a judgment of 11 MArch 2010, case file I C 1532/09, ruled that naszakalwaria.pl website cannot be deemed as the press according to provisions of the Polish Act of 26 January 1984 on Press law – APL – (in Polish: ustawa Prawo prasowe), Journal of Laws (Dziennik Ustaw) No. 5, item 24, with later amendmets, because it did not meet the criterion of periodicity. The court noted that naszakalwaria.pl website is rather a collection of publications and serves as a wall on which people are able to post their comments. The court emphasized that the purpose of Internet portals, such as naszakalwaria.pl is primarily to initiate and shape public debate on issues important to the local community. The court added that the Internet is, in principle, free from control and could be subject to control only, if it fits the regulation provided in the APL. The court also stated that Augustyn Ormanty failed to prove that the offensive – in his opinion – comments related to the facts. According to the Court, they were rather opinions, which in principle cannot be judged based on the criterion of truth and falsehood.

In addition, the court held that Tomasz Baluś had a limited capacity for meticulousy checking and editing of the entries appearing on the forum of his website because of their large numbers. The court stated that the measures taken by the Mr. Baluś to search and control the entries for vulgarity and to remove obviously insulting comments were sufficient. According to the Court, Mr. Ormanty had a possibility and the right to request the removal of comments he found insulting, based on provisions of article 14 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.

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.

The court pointed out to the argument stating that the mayor is a public figure who must reckon with the fact that its activities may be subject to criticism. As a public figure, Mr. Ormanty should show greater resistance to critical opinions, negatively evaluating the performance of the functions entrusted to him.

In conclusion, the Court added that the law has not kept pace with the development of modern technology and therefore, it does not precisely regulate the issues of freedom of expression in the Internet. Therefore, the careful evaluation of such situations, is entrusted to the judges. Their task is to ensure and guarantee the freedom of expression in similar cases.

Personal data protection, case II SA/Wa 1085/04

February 11th, 2010, Tomasz Rychlicki

In July 2003, the Inspector General for Personal Data Protection (GIODO) received a complaint in which a natural person, known as W.K. (personal data of the parties are removed from Polish courts’ judgments), requested the GIODO to issue an order to the Polish Internet company to reveal personal data of persons, against which the applicant wanted to initiate legal proceedings. The complaint showed that the online forum operated by the Internet company hosted defamatory content posted by persons using only nicknames.

W.K. proved that he had requested the Company to disclose full IP addresses of computers from which persons using only nicknames have sent messages to the online forum. The applicant also pointed out that the Regional Prosecutor’s Office refused to determine the perpetrators of the alleged defamation. The refusal was also upheld by the District Prosecutor’s Office.

W.K. pointed out that he brought a private accusation based on article 212 § 1 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, to the Regional Court in K., against the persons who used given nicknames. The Court has issued an order in which it considered the private accusation legally ineffective because it included error in the form – i.e., no indication of names of defendants and their addresses, and W.K. did not clear these errors.

The GIODO has found that the purpose for which W.K. has applied for, i.e. the access to personal data, to assert his rights before the court, is legally justified. The use of these data by the applicant in the proceedings could not be considered as a violation of the rights and freedoms of persons whos personal data was collected because after the initiation of criminal or civil proceedings, personal data would be in a disposition the court.

The Company filed a complaint to the Voivodeship Administrative Court (VAC) in Warsaw. The Court in a judgment of 9 February 2005, case file II SA/Wa 1085/04, annulled the contested decision. The VAC held that the complaint was based on article 23(1) pt. 5 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.

1. The processing of data is permitted only if:
5) processing is necessary for the purpose of the legitimate interests pursued by the controllers or data recipients, provided that the processing does not violate the rights and freedoms of the data subject.

The court did not accept that the wording of this provision can be interpreted as a rule requiring a data controller to reveal personal data at the request of the person whose requested data does not concern. The basis for such claims available for third parties for purposes other than inclusion in the data collection, was provided in the article 29(1) and (2) of the PPD. This provision being in force until 1 May 2004, did not give rise to demand release of the data, if the controller/administrator of the data were private sector.

The Court also held that the imposition of the duty of the data controller can only be done when the information being available to the controller falls into the category of personal data as defined in article 6(1) of the PPD.

personal data shall mean any information relating to an identified or identifiable natural person.

The requested information related to IP addresses of computers from which the messages were posted by certain people using certain nicknames. The Company argued that it does not require users of its forum to identify themselves in order to post information, what causes that, the IT administration system of the portal website hosting different forums, registers only IP address of computers of persons using the system, and it does not produce other data for identifying the user of a forum. Only a request to the operator of the telecommunication network could lead to the identification of the computer which was connected to the server hosting the portal and its forums. The Court cited English and Polish comentators and found that information, that without extraordinary and disproportionate effort can be “linked” with a specific person, especially by using readily and widely available sources, also deserve credit for their category of personal data. The identifiable person is defined in article 6(2) of the Polish Act of August 29, 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.

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.

Computer crime, case V K 1595/08

February 9th, 2010, Tomasz Rychlicki

Arnold 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 Rychlicki

Since 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“.

Personal data protection, case I OSK 1079/10

February 5th, 2010, Tomasz Rychlicki

According 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).

Computer crime, case II K 320/07

December 14th, 2009, Tomasz Rychlicki

Do 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.