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Archive for: defamation

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.

See also my posts entitled “Polish regulations on personal data protection” and “Polish case law on personal data protection“.

Polish court rules on the location of the Internet

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 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 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.

and article 216 § 2 of the CRC

§ 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 held that

both 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 VK 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 my post entitled “Who is an Internet troll?“.

Who is an Internet troll?

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 rejected 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 my post entitled “Polish court rules on the location of the Internet“.

IP address is personal data says Polish court

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.

This judgment is not yet final. A cassation complaint may be filed to the Supreme Administrative Court.

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 my posts entitled “Polish regulations on personal data protection” and “Polish case law on personal data protection“.

Polish court ordered Google to reveal e-mail correspondence

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.

A sequel to a story on websites that should be registered as press

January 14th, 2009, Tomasz Rychlicki

I wrote an article entitled “Polish Courts Say Websites Should Be Registered As Press” together with my good friend Piotr Waglowski. It was recently published in the Computer and Telecommunications Law Review, C.T.L.R. 2009, 15(1), 9-14.

There is also a sequel to Leszek Szymczak’s story. On 16 December 2008, the Regional Court in Słupsk issued a judgment, case file II K 367/08, in which Leszek Szymczak was acquitted from charges of “publishing press material featuring criminal content that publicly incited its readers to commit offences”. As you may read from our article, 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), Journal of Laws (Dziennik Ustaw) No 5, item 24, with later amendmets.

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 article 255 of the Criminal Code of 6 June 1997, Journal of Laws (Dziennik Ustaw) No. 88, item 553, with later 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 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.

See also my post entitled “Criminal minded“.

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 the Polish Civil Code in article 23. 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 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 later 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.