Archive for: criminal law

Criminal law, case III KK 234/07

February 20th, 2009, Tomasz Rychlicki

The Supreme Court Criminal Chamber in its judgment of 7 May 2008 case file III KK 234/07 held that the freedom of the press and other means of social communication that are guaranteed in the Article 14 of the Polish Constitution, also include mass media communication, as referred to in 216 § 2 i 212 § 2 of the Criminal Code. The Court noted that Internet is deemed as a means of mass communication, whereby the offender may commit both the defamation and insult. The case concerned defamation via the Internet. The investigation established only a computer that was used to commit this type of offence. The Court observed that it is not possible to automatically connect a computer with a perpetrator. The Court ruled that there is a possibility to establish and determine the IP address to identify the owner of a specific computer, which has been used for defamatory or insulting actions, but there is no possibility to indicate who used such computer, if adequate evidence was not collected, and if the owner does not indicate the person who committed the offence. Sharing a computer with a third person is not a wrongful act. It is impossible in the current state of the law to recognize that the mere act of sharing of a computer with a third person results in criminal liability of its owner.

Press law, case II K 367/08

January 14th, 2009, Tomasz Rychlicki

The Regional Court in Słupsk in its judgment of 16 December 2008, case file II K 367/08 acquitted Leszek Szymczak from charges of publishing press material featuring criminal content that publicly incited its readers to commit offences. This case concerned posts that were published at the online forum of http://gazetabytowska.pl website (also accessible at http://gby.pl), which – according to the Public Prosecutor’s Office – included incitement to commit crime. Charges were based on Article 49a of the Polish Act of 26 January 1984 on Press law – APL – (in Polish: ustawa Prawo prasowe), published in Journal of Laws (Dziennik Ustaw) No 5, item 24, with subsequent amendments.

An editor who unintentionally published press material that featured criminal content mentioned in article 37a hereof, shall be subject to a fine penalty or the restriction of liberty.

In connection with the provisions of Article 255 of the Polish Criminal Code – CRC – (in Polish: Kodeks Karny) of 6 June 1997, published in Journal of Laws (Dziennik Ustaw) No 88, item 553, with subsequent amendments.

1. A person who publicly calls for committing an offence of a fiscal crime shall be subject to a fine penalty, the restriction of liberty or imprisonment for up to two years.
2. A person who publicly calls for committing a crime shall be subject to the restriction of liberty for up to three years.
3. A person who publicly praises the commitment of a crime shall be subject to a fine penalty amounting to up to 180 daily rates, the restriction of liberty or imprisonment for up to one year.

The Court ruled that according to the provisions of Polish Press Law, Leszek Szymczak is the publisher and the editor, however the entries that were posted by visitors of his website did not constitute a press material. The appeal brought by the Prosecutor Office was rejected. See “Press law, case VI Ka 202/09“.

See also “Press law, case VI Ka 409/07” and “Press law, case IV KK 174/07“.

Computer crimes, case VI K 849/07

October 6th, 2008, Tomasz Rychlicki

On August 11, 2008, the District Court in Glogów (VI Wydzial Grodzki) issued an important ruling case file VI K 849/07, regarding a man accused by the prosecutor of using computers to breach electronic security of a company server and database which allowed him to obtain information not intended for him (personal data) thereby acting to the detriment of the business. Mateusz M. was accused by the prosecutor based on regulations provided in Artice 267 §1 of the Polish Penal Code.

Chapter XXXIII. Crimes against protection of information
(…)
Article 267.
§ 1. Whoever, without being authorised to do so, acquires information not destined for him, by opening a sealed letter, or connecting to a wire that transmits information or by breaching electronic, magnetic or other special protection for that information shall be subject to a fine, the penalty of restriction of liberty or the penalty of deprivation of liberty for up to 2 years.
§ 2. The same punishment shall be imposed on anyone, who, in order to acquire information to which he is not authorised to access, installs or uses tapping, visual detection or other special equipment.
§ 3. The same punishment shall be imposed on anyone, who imparts to another person the information obtained in the manner specified in § 1 or 2 discloses to another person.
§ 4. The prosecution of the offence specified in § 1 – 3 shall occur on a motion of the injured person.

Mateusz M. had browsed through an internet company website and found that the service contained serious programming errors. He put into the login form a string of signs as follows “‘ or 1 = 1” (and repeated this operation in the password field), which resulted in him being signed/logged into a random user account which allowed him to gain access to several user accounts and their personal data. Mateusz M. decided to exploit this opportunity and made contact with company’s representatives. He informed them that he detected a gap in their website security which allowed him entry to the marketing database of firms owned or connected with the company which operated this online database. In the meantime, Mateusz M. checked other websites and online services created by the same authors of the first website. He has also found that all of them contained the same programming errors because all these websites were built using the same content management system (CMS). Mateusz M. was invited by the company to sign a contract to remove these programming errors. He was also presented with a non-disclosure agreement (NDA), which he signed. However the NDA’s date was set prior to the date he had detected the programming errors and this was used by the company to enable the police, who were co-operating with the company, to arrest Mateusz M.

During the pre-trial proceedings the court’s expert in the field of information technology stated that in his opinion Mateusz M. had used “a form of attack on the company’s database called SQL Injection”; the aim of such an attack is “to extract confidential information from the database and to disrupt its operation”. In the course of the proceedings before the court, the District Court in G#x142og1ow allowed the counsel for the defence to admit evidence of another expert.

The second expert provided the court with an opinion that by introducing a string “‘ or 1 = 1” Mateusz M. had not made any breach of the database, he did not crack any password allowing for access to the database, he did not type or insert any software code and Mateusz M. had not affected the functioning of the database in any way. According to the second expert, Mateusz M. had not removed the database security, and he had not changed the password access, nor did he create any new accounts in the database. In this expert’s opinion, the introduction of the said string by Mateusz M. should be considered as an “SQL Injection” method that was used to circumvent the protection of a database, but that it was permitted by the improper and inadequate protection scheme applied to the database by its creators. The “Sign in” form of the database was designed in such a way that merely typing any string of characters was permitted as an input of data for this type of form. The database authors had not implemented any solutions to verify whether the database stored a user name or password attached to such a string, and as it had not, the database did not generate a proper error message

The court held that the action of the accused failed to comply with the statutory elements of Article 267. In the court’s opinion, breaching security occurs when the offender destroys or removes the security, or when the impact of the offender’s action on the security temporarily removes its protective function. Thus a person who gains access to sensitive information without breaking any security measures is not criminally responsible.

The court ruling acquitted the accused of all the charges based on art.632(2) Polish Criminal Proceedings Code, and the court held that the costs of wrongful prosecution were to be covered by the state. This decision was final and consequently there are pending amendments to the Polish Criminal Code relating to the aforementioned regulations.

Personal rights, case I ACa 385/2006

July 31st, 2008, Tomasz Rychlicki

Update on Februrary 27, 2010.
I reported on a final judgment in Justyna Steczkowska’s case in my post entitled “Personal rights, case I ACa 1176/09“.

My post that was written in Polish language is too long and probably boring for most of you. It concerns Justyna Steczkowska’s naked pictures taken during her holiday at Turkish Rivera and being published by “Super Express”, which is one of many Polish tabliods. I also wrote about some comments that were posted by Polish lawyers regarding the right of privacy issue and I wanted to write a comparative note about American and Polish legal systems but I am way too busy for such undertaking. I can only tell you that Maciej Ślusarek, an attorney representing Justyna Steczkowska, will have easier case in Poland as opposed to the US legal reality. Mr. Ślusarek previously won a case against “Super Express” publisher and editor-in-chief. It was a very important judgment of the Appellate Court in Warsaw of 29 September 2006 case file I ACa 385/2006. Mr. Ślusarek represented another Polish singer Edyta Górniak. The Court held that there is a need to distinguish the persons carrying out the public functions, if a person due to the character of those functions might be subjected to public control and the openness of their life is justified by the important society interest, from the commonly known persons, who are not subjected to such intense public control. The distinction included in court’s ruling is of course of great importance for protection limitations established for such persons.

The protection of personal image/publicity rights is provided in Article 23 of the Civil Code – CC – (in Polish: Kodeks Cywilny) of 23 April 1964, published in Journal of Laws (Dziennik Ustaw) No. 16, item 93, with subsequent amendments. This provision outlines the personal image as one of the personal property/interests – an intangible personal right. Furthermore, a person who would like to claim an infringment of his/her rights might also exercise the civil protection of personal image afforded by provisions of the Polish Act of 4 February 1994 on Authors Rights and Neighbouring Rights – ARNR – (in Polish: ustawa o prawie autorskim i prawach pokrewnych), published in Journal of Laws (Dziennik Ustaw) No 24, item 83, consolidated text of 16 May 2006, Journal of Laws (Dziennik Ustaw) No 90, item 631 with subsequent amendments.

Article 81.
1. The dissemination of an image shall require the permission of the person presented in that image. Unless there is a clear reservation, such permission shall not be required if such person has received the agreed price for posing.
2. The permission shall not be required for the dissemination of the image:
1) of a commonly known person, if such image has been made in connection with his/her performance of public functions and, in particular, political, social or professional functions,
2) of a person constituting only a detail of a whole, such as a meeting, a landscape, or a public event.
(…)
Article 83.
The provisions of Article 78, paragraph 1 shall apply respectively to claims brought due to the dissemination of the image of the person presented in it and the dissemination of correspondence without the required permission of the person to whom it was addressed; such claims may not be asserted after the lapse of twenty years from the death of that person.

Additional protection is also provided in the Act of 26 January 1984 on Press Law, the Criminal Code and the Act of 29 August 1997 on Protection of Personal Data. The protection of privacy and publicity may also derive from the Constitution of the Republic of Poland of 2 April 1997.

Article 47
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.
(…)
Article 54
1. The freedom to express opinions, to acquire and to disseminate information shall be ensured to everyone.
2. Preventive censorship of the means of social communication and the licensing of the press shall be prohibited. Statutes may require the receipt of a permit for the operation of a radio or television station.

And, of course, from the European Convention on Human Rights of 4 November 1950.

Trade mark law, case I KZP 8/08

July 1st, 2008, Tomasz Rychlicki

The Polish Supreme Court, the Criminal Law Chamber sitting in extended bench of seven Justices, in its judgment of 30 June 2008 case file I KZP 8/08 answered the question, whether the Polish legislator’s intent was to leave acts of purchasing counterfeit goods with impunity, or should such deeds be deemed as fencing according to provisions of Articles 291 and 292 of the Criminal Code – CRC – (in Polish: Kodeks Karny) of 6 June 1997, published in Journal of Laws (Dziennik Ustaw) No 88, item 553, with subsequent amendments.

This case concerned Małgorzata N. (publication of full personal data is not allowed in Polish criminal proceedings unless otherwise decided by a court) who was accused by the prosecutor of helping to sell clothes which were unlawfully bearing registered trade marks such as Everlast, Adidas, Puma and Nike. The charges were based on the article 291 of the CRC.

1. Whoever acquires property obtained by means of a prohibited act, or assists in its disposition, or receives such property or assists in the concealment thereof 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.

The court of the first instance (Regional Court) has ruled that Małgorzata N. was guilty of buying contested clothes in unfound place and time, and at the same time knowing that those products unlawfully bore registered trade marks. The Court sentenced the defendant for 50 daily rates of fine, each worth 40 PLN. Małgorzata N. appealed. Her attorney argued that the court of the first instance erred in the interpretation of article 291 of CRC which should be only applied in a case of the first purchase as it was decided by the Supreme Court in its judgment of 24 May 2005 case file I KZP 13/05. See “Trade mark law, case I KZP 13/05“. According to defendant’s attorney the Supreme Court’s interpretation excluded Małgorzata N.’s guilt because further turnover of such goods was beyond the scope of penalisation. Article 305(1) was amended of 31 July 2007 to adjust its provisions to every situation of “market turnover”.

Anyone marking goods with a counterfeit trade mark, registered trade mark for which one does not have the right to use, for the purpose of introducing them on the market or anyone who is making a turnover of goods bearing such trade mark, shall be liable to a fine, limitation of freedom or imprisonment for a period of up to two years.

The Supreme Court held that any behaviour which is not understood as “introduction to market” as defined in article 305(1) of the IPL (after amendments from 2007) and consisting of further market turnouver of goods bearing counterfeited trade marks is not a misdemeanour defined by article 291 and 292 of the PPC because it does not fulfill a trait of “property obtained by means of a prohibited act”.

Trade mark law, case I KZP 13/05

May 23rd, 2008, Tomasz Rychlicki

The Supreme Court in its judgment of 24 May 2005 case file I KZP 13/05 interpreted the meaning of the term “introducing to market” and clarified the provisions of Article 305(1) of the Polish Act of 30 June 2000 on Industrial Property Law – IPL – (in Polish: ustawa Prawo własności przemysłowej), published in Journal of Laws (Dziennik Ustaw) of 2001 No 49, item 508, consolidated text on 13 June 2003, Journal of Laws (Dziennik Ustaw) No 119, item 1117, before amendments of 2007.

Anyone marking goods with a counterfeit trademark for the purpose of introducing them on the market or introducing on the market goods bearing such trademark, shall be liable to a fine, limitation of freedom or imprisonment for a period of up to two years.

The Supreme Court defined the term “introduction to market” as a passing on of goods labelled with a fake trade mark for the first time by a producer or importer of those goods. A subsequent sale of such a product should not therefore be recognized as “introduction to market” and could not therefore be the subject of criminal proceedings.

Copyright law, case I KZP 18/03

April 13th, 2008, Tomasz Rychlicki

The Polish Supreme Court in its resolution of 21 October 2003 case file I KZP 18/03 held that the license agreement is essentially the contractual relationship, which on the one hand determines the permissions granted to the licensee, on the other hand it creates the obligation to pay (the right to remuneration) to authorized party, i.e. a licensor. Therefore, the provision “against the terms and conditions of authorization” that is used in Article 116 of the Polish Act on Authors Rights and Neighbouring Rights – ARNR – (in Polish: ustawa o prawie autorskim i prawach pokrewnych) of 4 February 1994, published in Journal of Laws (Dziennik Ustaw) No 24, item 83, consolidated text of 16 May 2006, Journal of Laws (Dziennik Ustaw) No 90, item 631 with subsequent amendment, refers only to the right or permission to distribute the work, that was granted the licensee.

Article 116. 1. Whoever, without authorization or against its terms and conditions, disseminates other persons’ work, artistic performance, phonogram, videogram or broadcast in the original or derivative
version shall be liable to a fine, restriction of liberty or imprisonment for up to 2 years.
2. If the offender commits the act specified in paragraph 1 above in order to gain material benefits,
he/she shall be liable to imprisonment for up to 3 years.
3. If the offender commits the offence specified in paragraph 1 above a regular source of income or organizes or manages a criminal activity as specified in paragraph 1, he/she shall be liable to imprisonment for 6 months to 5 years.
4. If the offender of the act specified in paragraph 1 above acts unintentionally, he/she shall be liable to a fine, restriction of liberty or imprisonment for up to one year.

The Court ruled that the provision “against the terms and conditions of authorization” does not apply to obligations under the license agreement (the right to remuneration or the obligation to provide financial statements). This understanding of the concept of the authorization also refers the statutory license that existed before the amdendments to the ARNR, but with the difference that the source of “authorization” was not provided in a contract but only by statute.

See also “Polish regulations on copyright” and “Polish case law on copyright“.

Criminal law, case P 10/06

December 13th, 2006, Tomasz Rychlicki

The Constitutional Tribunal in its judgment of 30 October 2006 case file P 10/06, examined the preliminary question referred by a Regional Court in Gdańsk concerning the provision of Articles 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.

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 Regional Court and different NGOs claimed that the sufficient protection against defamation may be realized within the relevant provisions of the civil proceedings, in particular, the system of protection of personal rights/interests, provided in the Civil Code. The Regional Court alleged that the penalization of the defamation limits the constitutional freedom of expression as set forth in Articles 14 and 54 of the Polish Constitution in a way which is not necessary in the democratic State and, therefore, it constitutes a violation of the principle of proportionality, guaranteed in the Article 31(3) of the Constitution.

Article 14
The Republic of Poland shall ensure freedom of the press and other means of social communication.

Article 31
1. Freedom of the person shall receive legal protection.
2. Everyone shall respect the freedoms and rights of others. No one shall be compelled to do that which is not required by law.
3. Any limitation upon the exercise of constitutional freedoms and rights may be imposed only by statute, and only when necessary in a democratic state for the protection of its security or public order, or to protect the natural environment, health or public morals, or the freedoms and rights of other persons. Such limitations shall not violate the essence of freedoms and rights.

Article 54
1. The freedom to express opinions, to acquire and to disseminate information shall be ensured to everyone.
2. Preventive censorship of the means of social communication and the licensing of the press shall be prohibited. Statutes may require the receipt of a permit for the operation of a radio or television station.

The Constitutional Tribunal did not uphold the aforementioned argumentation and ruled that the challenged provisions of the Criminal Code are in conformity with the constitutional principle of proportionality. The criminal-legal protection of private life and good reputation is necessary in democracy and may not be sufficiently substituted by the civil-legal provisions. Judges Ewa Łętowska, Marek Safjan i Mirosław Wyrzykowski presented dissenting opinions. Those judges focused mainly on the solution adopted in Article 213 § 2 of the CRC.

Article 213. § 1. The offence specified in Article 212 § 1 is not committed, if the allegation not made in public is true.
§ 2. Whoever raises or publicises a true allegation in defence of a justifiable public interest shall be deemed to have not committed the offence specified in Article 212 § 1 or 2; if the allegation regards private or family life the evidence of truth shall only be carried out when it serves to prevent a danger to someone’s life or to prevent demoralisation of a minor.

The Tribunal ruled in favour of the private life and good reputation. Such conclusion is justified in the axiology of Article 30 of the Polish Constitution.

Article 30
The inherent and inalienable dignity of the person shall constitute a source of freedoms and rights of persons and citizens. It shall be inviolable. The respect and protection thereof shall be the obligation of public authorities.

The latter argument, namely the strict link between individuals’ privacy and human dignity, leads to the conclusion that the protection of privacy is in the interest of not only a person whose privacy has been violated, but also in the interest of the entire society. Hence, the protection of privacy and good reputation constitutes the public interest that needs to be taken into consideration in construing the system of anti-defamation protection mechanisms. The Tribunal ruled that defamation is a violation of the human dignity. The obligation of public authorities is to respect and protect human dignity which includes the need to ensure protection against infringement also by private entities. The Constitutional Tribunal transposed the aforementioned argumentation into the field of comparison of the criminal liability, which is aimed at repression, and civil liability, which is aimed – in principle – at compensation.

In the Tribunal’s opinion, the constitutional requirements concerning the protection of privacy and good reputation impose on the legislator the duty to create mechanisms which would take into account not only the need to satisfy the victim of defamation (to compensate his or her harm), but also to the need to underline the social condemnation of such activities. The civil liability fulfils only first of these conditions. That is why there is a necessity – the necessity in a democratic State – to encompass the defamation with the scope of criminal law, since where a certain type of behavior is treated by the legislator as a criminal offence, it signifies that such a behavior constitutes a threat to public interest and not only to the rights and freedoms of victims.

These arguments led the Constitutional Tribunal to the conclusion that the challenged provision of the Criminal Code, penalizing the defamation of a person, does not violate the Constitution.

Personal interests, case I ACr 1013/95

February 21st, 2005, Tomasz Rychlicki

The Appellate Court in Warsaw in its judgment of 19 December 1999 case file I ACr 1013/95 held that the reputation of the company is understood as a general positive perception and evaluation of products of such a company that is expressed by the consumers. It may be treated as personal interest/rights of a legal person to which it apply mutatis mutandis, by Articles 23 and 24 f the Civil Code – CC – (in Polish: Kodeks Cywilny) of 23 April 1964, published in Journal of Laws (Dziennik Ustaw) No. 16, item 93, with subsequent 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 interests 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 interests 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.

These non-economic/non-commercial values by which a legal person may operate on the market in accordance with the scope of its business, are also deemed as its personal rights or interests.

Personal interests, case I ACa 560/04

February 10th, 2005, Tomasz Rychlicki

The Appellate Court in Katowice in its judgment of 4 November 2004 case file I ACa 560/04 ruled that the company, which in this case was understood as the company name (firm), is often intellectual interest/asset of significant value, which according to the will of the legislature is protected by the law. This is an absolute subjective right which is effective erga omnes, and it’s personal interest/right that is associated with an entrepreneur. The broadest spectrum protection that may be enforced not only in commerce but also may be brought against anyone who is in breach of the interest of entrepreneurs, is provided in Articles 23 and 24 of the Civil Code – CC – (in Polish: Kodeks Cywilny) of 23 April 1964, published in Journal of Laws (Dziennik Ustaw) No. 16, item 93, with subsequent amendments.

Article 23
The personal interests/rights 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 Court also ruled that if a press title is encroaching a realm of personal property, and if such action violates or threatens the interests of another entrepreneur, the sufferer may exercise his power by seeking civil protection through civil process. There must exist the real apprehensive of an infringements and valid registration for the press title for the effectiveness of such a claim.