Archive for: e-law issues

Procedural law, case III CZP 102/15

March 25th, 2016, Tomasz Rychlicki

The Supreme Court in its order of 23 March 2016 case file III CZP 102/15 answered important questions related to minutes of hearing that were recorded as electronic/digital versions. The Regional Court decided a case related to payment, while some doubts as to interpretation of law related to recording of minutes and evidence, arose. The Supreme Court held that the transcription of the minutes that were recorded as sound and video is not an official document according to the provisions of the Civil Proceedings Code – CPC – (in Polish: Kodeks Postępowania Cywilnego) of 17 November 1964, published in Journal of Laws (Dziennik Ustaw) No 43, item 296, with subsequent amendments, and as such cannot be used for findings related to court’s session. If the minutes recorded as audio and/or audio and video do not allow to determine the content of evidence, the Court has to repeat an action related to this step. On an appeal, there is no need for the applicant to indicate a specific part of the sound recording (or video and audio) that relates to action of taking an evidence.

Personal interest, case I ACa 544/15

March 17th, 2016, Tomasz Rychlicki

The Appeallate Court in Warsaw in its judgment of 12 January 2016 case file I ACa 544/15 decided a case of a person who offers legal assistance to entities who have received the payment order, and also writes articles and tips describing among other things, business debt collection companies and their activities. These articles were published online. The plaintiff in this case, one of such companies, felt that content of defendant’s posts infringed its personal interest – the company name. The defendant was found liable in first instance, however, the judgment was overturned on an appeal. The Court held that the District Court did not perform comprehensive assessment of the evidence.

The Appeallate Court did not agree that printouts from a website could serves as a private document according to the provisions of Article 245 of the Civil Proceedings Code – CPC – (in Polish: Kodeks Postępowania Cywilnego) of 17 November 1964, published in Journal of Laws (Dziennik Ustaw) No 43, item 296, with subsequent amendments. A private document is proof that the person who signed it, made a statement contained in the document. This means that inherent feature of this type of evidence is the signature. The evidence provided by the plaintiff did not contain a signature. The CPC does not provide an exhaustive list of what can be deemed as evidence in civil proceedings. As evidence can serve documents (official and private), testimonies of witnesses, expert opinions, inspection, hearing the parties. Moreover, based on the provisions of Article 308 § 1 of the CPCP, the Court may also admit movies, television series, photocopies, photographs, plans, drawings and CDs or audio tapes and other devices that store images or sounds, as evidence. The Court ruled that prints from websites are not a private document within the meaning of Article 244 and 245 of the CPC. However, such prints may be considered as “another type of evidence” within the meaning of Article 309 of the CPC, as the CPC does not provide an exhaustive list of evidence, and it is acceptable to use any source of information about the facts relevant to the outcome of the case, and as evidence may serve any legally obtained media or information of the facts. See “Procedural law, case I CSK 138/08“. Plaintiff’s claims and submitted evidence suggested that the claimant saw defendant’s posts on a web site and later saved it in its own web browser. In this way the Company has presented to the court only copies of files that were posted on a website, and not, as erroneously the District Court stated, printouts from the website maintained by the defendant. The Court pointed out that there are plenty of ways to modify the content of a website. The Appeallate Court decided that the plaintiff has submitted evidence of low credibility, since they did not provide information that their content was corresponding to was actually visible on the screen while a website with defamatory content was accessed. The Court found that it was also not known when the plaintiff has saved the content of a website, as the date of saving process was not indicated, and as the date the violation of personal rights was also not mentioned.

Personal interest, case I ACa 142/15

February 17th, 2016, Tomasz Rychlicki

The Appeallate Court in Warsaw in its judgment of 16 December 2015 case file I ACa 142/15 decided a case of a Polish rockman who sued a tabloid newspaper for publishing online article that infringed his personal interests. The Court found the journalist and author of the article liable and ordered him to publish apology and to pay proper compensation. However, the Court dismissed the claim that would order the publisher to remove the article from newspaper’s website. The Court ruled that the role of the judicial authorities is not to participate in the falsification of history by ordering the removal from the public sphere of all traces of publications recognized in the past by the final judicial decisions as unjustifiable attack on the good name of individuals. Accordingly, a proportional and adequate form of protection for the plaintiff would by be amending online defamatory publications with a relevant footnote, comment or link to information about the outcome of the proceedings.

E-signature, case I OPS 10/13

March 27th, 2015, Tomasz Rychlicki

The Supreme Administrative Court in its order of 12 May 2014 case file I OPS 10/13 held that the current legal status of administrative court proceedings, as defined in Article 46 § 1 pt. 4 of the Polish 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, with subsequent amendments, does not allow for filing to a court a letter that is only bearing an electronic signature of a party. Such letters must bear handwritten signature. This includes a situation of filing documents through public administration body, by means of electronic communication.

Personal interests, case I C 988/13

September 26th, 2014, Tomasz Rychlicki

The District Court in Wrocław in its judgment of 27 March 2014 case file I C 988/13 ruled that the provisions Article 15 of the Polish Act of 18 July 2002 on Providing Services by Electronic Means – PSEM – (in Polish: ustwa o świadczeniu usług droga elektroniczną), published in Journal of Laws (Dziennik Ustaw) No. 144, item. 1204 with subsequent amendments, exempts ISPs from the preventive moderation (approval) of comments posted by website and forum users.

The entity, which provides services specified in art. 12 – 14, shall not be obliged to monitor the data referred to in art. 12 – 14, which are transmitted, stored or made available by that entity.

The Court ruled that the lack of implementation of a control and content filtering system for profanity comments cannot prejudge the responsibility of the defendant, because preventive censorship would lead to infringement of the right to freedom of expression. The decision on the scope and priority of protected and conflicting rights, while accepting the obligation to adopt preventive control of information posted on a website and bonding the liability of the provider with the lack of such system, would constitute an excessive interference in the need of protection for different rights and interests, while simultaneously threatening freedom of expression.

Personal interest, case I CSK 542/13

September 17th, 2014, Tomasz Rychlicki

Leszek Czarnecki and his wife Jolanta Pieńkowska sued Grupa o2, the owner and publisher of pudelek.pl website. Mr Czarnecki claimed that articles posted on this website infringed his personal interests by publishing information about social status and a new home, which was built on a grand scale.

The District Court in Warsaw in its judgment of 24 October 2011 case file IV C 1639/10 found the publisher guilty. The court held that the content of articles undermined the prestige of the spouses as they are people commonly known, reputable and rich. The Court ruled that the amount of compensation is up to 200.000 PLN, because, as the judge assessed the higher the prestige of imputed persons is, the higher should be the economic sanction.

Grupa o2 appealed. The Appeallate Court in Warsaw in its judgment case file VI ACa 73/12 ordered owners of both sites to issue an apology but reduced the amount awarded, and ruled that the company has to pay 20.000 PLN for social purpose. Both parties filed cassation complaints.

The Supreme Court in its judgment of 12 September 2014 case file I CSK 542/13 repealed the contested judgment and returned the case for further reconsideration. The reasons were based on procedural grounds. It turned out that the Appeallate court has assessed the evidence, but it did not find its own conclusions. The Court also did not rule on the relationship between comments posted by Internet users and the provisions of Polish Act on Providing Services by Electronic Means that exclude the liability of the ISPs.

Copyright law, case I ACa 1663/13

August 19th, 2014, Tomasz Rychlicki

During a political campaign in 2011, Dariusz Dolczewski posted a movie clip on his profile on Facebook in which he used images of young politicians from other party. This clip had a background music taken from a rap song “Suczki” (Bitches) that was recorded by Dominik Grabowski, known as Doniu. Grabowski sued.

The District Court for Warszawa-Praga in its judgment of 12 July 2013 case file I C 504/12 held that there was copyright infringement and ordered Dolczewski to pay 17.500 PLN compensation. More importantly, the Court ruled that posting a link on Facebook can be also deemed as infringement of copyrighted works. Both parties appealed.

The Appeallate Court in Warsaw in its judgment of 7 May 2014 case file I ACa 1663/13 repealed the contested judgment and held that the politician is not liable for copyright infringement, because since the defendant was not the author of this audiovisual work (the clip), therefore he could not be found guilty for posting a link to such work. The Court also presented a very original conclusions apropos tangible and digital copy of the work. This issue arose in the discussion regarding the provision 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 amendments.

The Court ruled that recording of a work is undoubtedly the moment when one may accept the existence of a song. Traditionally, recording always, according to the provisions of ARNR, was related to the existence of material copy of the work. In the opinion of the Court of Appeal, the so-called “tangible copy theory” must be applied to digital world. First of all, one must realize the essence of digital recording, which forms the basis of operation and content availability on the Internet. The Court noted that the difference between conventional tangible copy and a digital copy is the fact that the data stored digitally may be removed, but such data/information also have physical location on the media, can also be duplicated, but always and at any time on a material substrate in the form of a computer memory, or a recording unit, regardless of how information is stored. Only such solution allows for the use of information. Therefore, the possibility to play a song, whether on a computer or on another device determines the existence of a copy of the work in a tangible form.

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

Internet domains, case IV CSK 191/13

April 10th, 2014, Tomasz Rychlicki

The Polish company PASTA i BASTA Sp. z o.o. from Warszawa, the owner of the word-figurative trade mark pasta i basta 100 sposobów na makaron cafè R-212390 sued Restaurators Podlaszewscy Spółka Jawna from Toruń. PASTA i BASTA requested the court to prohibit Restaurators Podlaszewscy the use of restaurant name Pasta & Basta and to refrain from the use of Internet domain name pastaandbasta.com and to oblige the defendant to withdraw from the Polish Patent Office an application for the word-figurative trade mark pasta&basta Z-368187 and the withdrawal of the application for a Community trade mark and the award of 60.000 PLN.

R-212390.jpeg

The District Court dismissed the complaint and PASTA i BASTA decided to appeal. The Appeallate Court ordered Restaurators Podlaszewscy to cease the use of the name of the restaurant and refrain from using the website and ordered the defendant to pay 10.000 PLN. Restaurators Podlaszewscy filed a cassation complaint.

Z-368187

The Supreme Court in its judgment of 11 December 2013 case file IV CSK 191/13 held that if the competitor uses Internet domain name identical or similar to a registered trade mark, there may be trade mark infringement if such domain use may cause the likelihood of confusion as to the origin of the goods or services, or result in violation of the advertising function of the trade mark.

See also “Polish case law on domain names“.

Trade mark law, case C-98/13

March 22nd, 2014, Tomasz Rychlicki

The Court of Justice of the EU in its judgment of 6 February 2014 in Case C‑98/13 ruled that the Council Regulation (EC) No 1383/2003 of 22 July 2003 concerning customs action against goods suspected of infringing certain intellectual property rights and the measures to be taken against goods found to have infringed such rights must be interpreted as meaning that the holder of an intellectual property right over goods sold to a person residing in the territory of a Member State through an online sales website in a non-member country enjoys the protection afforded to that holder by that regulation at the time when those goods enter the territory of that Member State merely by virtue of the acquisition of those goods. It is not necessary, in addition, for the goods at issue to have been the subject, prior to the sale, of an offer for sale or advertising targeting consumers of that State.

Abusive clauses in B2C IT contracts, decision no. RKT-38/2013

February 24th, 2014, Tomasz Rychlicki

According to the provisions of Article 7 of the Act on the Protection of Consumer Rights and Liability for Damage Caused by a Dangerous Product – PRCLL – (in Polish: o ochronie niektórych praw konsumentów oraz o odpowiedzialności za szkodę wyrządzoną przez produkt niebezpieczny) of 2 March 2000, published in Journal of Laws (Dziennik Ustaw), No 22, item 271 with subsequent amendments, the consumer who concluded the so-called “distance contract” may withdraw from it without giving reasons, by way of an appropriate written statement, within the period of ten days from the conclusion of the contract. The “distance contract” or contracts concluded at a distance are defined as contracts concluded without simultaneous presence of both parties, in which one party is deemed as a consumer (a natural person not performing any business activities), by way of a use of means of communication at a distance, in particular order form without the address or addressed, serial letter, press advertising with a printed order form, catalogue, telephone, radio, television, automatic calling machine, videophone, videotext, electronic mail, facsimile machine, provided that the party to the contract with the consumer is the entrepreneur who organised in such a way its business activity.

The Polish Company Decoratum, owner of endo.pl website that sells children clothes, provided the TOS according to which a consumer willing to withdraw from a purchase, has had to return the purchased goods in order to make the withdrawal legally effective. However, such provisions are inconsistent with the PRCLL. The Act does not require the consumer to perform any additional actions, except filing a written statement (declaration of will to withdraw from a contract). The President of the Office of Competition and Consumer Protection initiated proceedings against Decorum and found that the company did not provided its consumers proper written information that they have the right to return purchased products. The President in its decision of 21 November 2013 no. RKT-38/2013 ordered the Company to pay a fine in the amount of 15.084 PLN. The entrepreneur abandoned the use of the challenged practices so it was possible to decrease the financial penalty. The decision is final.

See also “Polish regulations on prohibited contractual provisions” and “Polish case law on abusive clauses in B2C IT and IP contracts“.

Abusive clauses in B2C IT contracts, case XVII AmA 76/12

January 9th, 2014, Tomasz Rychlicki

Eller Service s.c., the owner of hosting service available at pobieraczek.pl, was sending to its customers misleading information in order to intimidate them and persuade to pay for serviced they did not directly order. The President of the Office of Competition and Consumer Protection decided that the clients of the website pobieraczek.pl received messages suggesting a criminal offence. Meanwhile, only a court issuing the judgment, may determine whether a crime was committed. An entrepreneur can not intimidate its consumers. Even the hypothetical suggestion that there will be filed a complaint or a private suit, is against the law. Entrepreneurs cannot intimidate consumers in order to force them to make their payments, and cannot lead consumers into legal confusion. The President of the OCCP ordered the company to pay a penalty of more than 215 thousand PLN. Eller Service filed a complaint against this decision.

The Court of Competition and Consumer Protection in its judgment of 13 December 2013 case file XVII AmA 76/12 upheld that decision. The judgment is not final.

See also “Polish regulations on prohibited contractual provisions” and “Polish case law on abusive clauses in B2C IT and IP contracts“.

Personal interest, case I ACa 841/2013

January 9th, 2014, Tomasz Rychlicki

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

Stop Allegro

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

Z-342240

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

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

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

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

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

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

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

The District Court in Warsaw in its judgment of 13 March 2013 case file XXIV C 1035/10 ruled that the “Zielone Światło” (Green Light) Foundation infringed personal rights of Allegro, such as reputation and fame. The Court decided that the demonstrations against the sale of Nazi memorabilia and interference with the logo of the portal were too excessive and bore the risk of linking the portal with Nazi organizations.

The Appeallate Court in Warsaw in its judgment of 9 January 2014 case file I ACa 841/2013 dismissed Allegro’s claims. The Court noted that in this case there was a conflict of values, but also drew attention to the historical context of the sale of items referring to the Nazi ideology. The court held that undoubtedly there has been violation of the good name of the plaintiff – the name of the portal website, and in consequence, it could interfere with its business because some customers would not have positive opinions regarding the auction site. However, the rough means of expression that were undertaken by the Defendants, in order to remove the sale of a Nazi gadgets, excluded illegality. According to the Court this actions proved to be effective – have led to restrictions on the sale of Nazi’s memorabilia . What’s more important, the Court held that the Defendants acted to protect a legitimate public interest. The court ruled that artistic criticism of such business activities of an auction portal is not an unlawful action and deserves constitutional protection. The judgment is final.

Personal interests, case I CSK 128/13

January 4th, 2014, Tomasz Rychlicki

Roman Giertych sued Ringer Axel Springer, the publisher of fakt.pl website, for the infringement of personal interests. Mr Giertych demanded that defamatory comments posted at fakt.pl should be removed by the publisher. He also seek for the compensation and the apology to be published on some websites.

Ringer Axel Springer argued that it is not responsible for the comments that appeared on its website based on the provisions afforded in the Polish Act of 18 July 2002 on Providing Services by Electronic Means – PSEM – (in Polish: ustwa o świadczeniu usług droga elektroniczną), published in Journal of Laws (Dziennik Ustaw) No. 144, item. 1204 with subsequent amendments, and the TOS that excluded the liability of the publisher for vulgar or offensive comments.

The District Court in Warsaw in its judgment of 20 October 2011 case file III C 330/11 agreed that all these comments were defamatory, however, the Court ruled that there is a different legal status of the editorial part of the website that included newspaper articles, and another status has to be attributed to a part that included the users’ comments – i.e. an internet forum, even if these comments were posted under the article placed by the owner of a website/web hosting provider. Despite claiming the right to control the content of entries (comments) that were made ​​by website’s readers, in the light of the provisions of the PSEM, the publisher has no such obligation. The Court decided that the publisher can not be held responsible for offensive comments posted on its website, however it can be found responsible only in case it failed to remove such comments, after obtaining positive knowledge of the unlawful nature of such entries. It means that under the Polish law, the publisher is not liable for the infringement of personal rights, but only for a possible damage that is based on the general principles that are provided in the Polish Civil Code. Mr Giertych appealled.

The Appeallate Court in Warsaw in its judgment of 11 October 2012 case file VI A Ca 2/12 made a clear distinction between the services provided by Ringer Axel Springer. The first one was a news service of a daily newspaper made available for free in the electronic form under the domain name fakt.pl, and the second was a free service of the internet forum. The provisions 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, should be applied to the first service, and the provisions of the PSEM to the second. The Court ruled that comments posted for free, by anonymous users of fakt.pl website under the article that was an online version of a paper edition, do not constitute press materials as defined in the Article 7(2)(i) of the APL. The lack of any influence from the editorial over anonymously published comments, not to mention any of their prior verification makes this kind of speech free of control and as such cannot be regarded as a press material. The Court disagreed with Mr Giertych that such comments should be treated as “letters sent to the editor” of a journal that is published electronically. The Supreme Court in its judgment of 28 September 2000 case file V KKN 171/98 ruled that letters to the editor are the press material if they were sent to the editor for publication, and the editor-in-chief is responsible for publication of press releases, however, the publication of the letter to the editor must be preceded by careful and accurate checking of the information contained in such a letter to the editor. The Court agreed that such comments could be deemed as letter to the editor according to the APL, but only, if they were published in the paper version of the magazine, therefore, the editor (editor-in-chief) or the publisher would have full control over the content of such comments/letters. Users of fakt.pl do not send their their opinions and comments to the editorial of fakt.pl for publication on a discussion forum that exists on that same website, but they decide themselves about such a publication. The editor-in-Chief cannot therefore be responsible for comments published by third parties, because he or she had no control over the content or the action. The Court also ruled that Mr Giertych drawn incorrect conclusions as to the Terms of Service of fakt.pl website, in which the editorial of fakt.pl allegedly reserved the right and at the same time undertook its control over the content posted on fakt.pl website, including comments, and the right to manage them, especially the right to decide which comment deserves publication and which does not. First, the Court found that Ringer Axel Springer has reserved only the right and not an obligation to manage of comments posted by users, secondly, this right was reserved in the TOS ​​not on behalf of the editorial of a journal that is published in electronic form under the domain name fakt.pl, but on behalf of the administrator of the IT system, thirdly, the reserved right applied not to decisions about publication of a particular comment on the website, but to decisions about its blocking, moderation or deletion. Therefore, the Court dismissed the appeal. Mr Giertych filed a cassation appeal.

The Supreme Court in its judgment of 10 January 2014 case file I CSK 128/13 partially agreed with Mr Giertych and returned the case to the lower court for reconsideration. The SC held that if the comments were defamatory and included vulgar words, the IT system applied at fakt.pl should have automatically removed such comments, but it did not, therefore it must be presumed that the publisher of a website, could know about offensive comments. If there was such knowledge, then the publisher/editor is liable for the infringement of personal interests. The Supreme Court established the so-called presumption of facts based on the provisions of the Article 231 of the Civil Proceedings Code. The court may conclude and consider as established facts, that are relevant for the outcome of the case, if such a conclusion can be derived from other established facts (presumption of fact).

Regardless of the cassation complaint filed in this case, Mr Giertych filed a complaint before the Polish Constitutional Tribunal. Mr Giertych requested the Tribunal to decided whether Article 14 of the PSEM is consistent with the principle of the rule of law, the right to protect of private life, family, honor and good name.

Personal interests, case I C 327/11

August 30th, 2013, Tomasz Rychlicki

The case concerned class’ photos of 32 children. Such photos were placed on a social networking site naszaklasa.pl. The black and white pictures were taken between the years 1972-1980, in a public space, i.e. a public education institution. Most of them were photos of the class as a whole, not each individual student. One person who was shown in this picture demanded its removal. The administrator of a website refused. The case went through all stages of administrative proceedings, and the person concerned decided to initiate a civil suit. The plaintiff demanded an apology in the media, 20.000 PLN compensation and the payment of 50.000 PLN for a social purpose, from the owner of naszaklasa.pl

The District Court in Wrocław in its judgment of 10 May 2013 case file I C 327/11 dismissed the suit. The Court ruled that the person seeking for the protection of his or her image has to prove that such image was published and is recognizable. It results from identification of information features of an image. Moreover, the image should be recognized not only by the person concerned, but also by third parties. The image of the plaintiff contained in the pictures was not fully recognized even his colleagues from the former primary school, as evidenced by comments on the website. Publishing of any informational or shooting materials on the website only provides the opportunity to look at such meterial by others, but this does not mean automatically that such information reached to an unlimited number of people, and consequently, that information was widespread. The Supreme Court in its judgment of 10 February 2010 case file V CSK 269/09 (published in: OSNC 2010/9/127) held data published on the web are not deemed as well-known/widespread data. The Supreme Court in its judgment of 27 February 2003 case file IV CKN 1819/00 (published in: OSP 2004/6/75) held that the infringement of the image of the individual occurs when it was published without the consent of the person in the photograph and while it allows for the identification of that person.

Personal data protection, case I OSK 1666/12

August 26th, 2013, Tomasz Rychlicki

The Polish company Promedica Care Sp. z o.o requested the Inspector General for Personal Data Protection (GIODO) to issue a decision that would order Agora S.A., the owner of gazeta.pl website, to disclose IP addresses of users who posted negative comments regarding Promedica24.pl website. The GIODO decided that Agora S.A. should disclose requested information, although, it also noticed that the provisions of Article 29 of the Polish Act of 29 August 1997 on the Protection of Personal Data – PPD – (in Polish: Ustawa o ochronie danych osobowych), unified text published in Journal of Laws (Dziennik Ustaw) of 6 July 2002, No. 101, item 926, with subsequent amendments, were repealed as of 7 March 2011.

1. The processing of data is permitted only if:
1) the data subject has given his/her consent, unless the processing consists in erasure of personal data,
2) processing is necessary for the purpose of exercise of rights and duties resulting from a legal provision,
3) processing is necessary for the performance of a contract to which the data subject is a party or in order to take steps at the request of the data subject prior to entering into a contract,
4) processing is necessary for the performance of tasks provided for by law and carried out in the public interest,
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.

However, these regulations should be still applied to proceedings initiated before the entry into force of the Act that repealed the above mentioned provisions, and there was no obstacle to justify the refusal to provide the requested data according to the provisions of Article 30 of the PPD.

Article 30
The controller shall refuse the access to the personal data of the filing system to subjects and persons other than those referred to in Article 29 paragraph 1, if it would:
1) result in the disclosure of the information constituting a state secrecy,
2) pose a threat to national defence or security of the state, human life and health, or security and public order,
3) pose a threat to fundamental economic or financial interests of the state,
4) result in a substantial breach of personal interests of the data subjects or other persons.

The General Inspector did not agree with Agora S.A. that providing the requested data would infringe personal interests of the users of gazeta.pl website and its fora. The violation was only hypothetical, and was not supported by proper evidence. Agora S.A. argued that there are no legal instruments that would allow for monitoring the use of disclosed data, and this may lead to their use not only inconsistent with the purpose for which they were disclosed, but even to such use that is contrary to law. The GIODO noted that the absence of such instruments is not synonymous with the use of disclosed data contrary to the purpose for which it was made available. At the moment such data was disclosed, the Company will become the controller (administrator) as defined in the Article 7(4) of the PPD.

Article 7
Whenever in this Act a reference is made to any of the following, it shall mean:
4) controller – shall mean a body, an organisational unit, an establishment or a person referred to in Article 3, who decides on the purposes and means of the processing of personal data.

According to the GIODO, the processing of these data will be subject to the regulations provided in the provisions of the PPD, in particular the obligation not to undergo further processing of the data collected that would not be in accordance with the objectives of the disclosure (so-called principle of expediency/purposefulness), and the control of data processing in compliance with the provisions on personal data protection will be still the competence of the Inspector General. Agora S.A. argued that the provisions of Article 18 of the Polish Act of 18 July 2002 on Providing Services by Electronic Means – PSEM – (in Polish: ustwa o świadczeniu usług droga elektroniczną), published in Journal of Laws (Dziennik Ustaw) No. 144, item. 1204 with subsequent amendments, should be applied in its case, not the provisions of the PPD.

Article 18
1. The service provider may process the following personal data of the service recipient necessary for entering in, designing contents, amending or terminating legal relationship between them:
1) service recipient’s surname and names ,
2) his/her PESEL number (Personal Identification Number),
3) his/her permanent residence address,
4) his/her address for correspondence, if it is different than the address referred to in point 3,
5) data used for verifying the service recipient’s electronic signature ,
6) service recipient’s electronic addresses .
2. In order to effect contracts or other legal activity having been concluded with a service recipient, a service provider may process other data necessary due to nature (characteristics) of the service provided or way of its billing.
3. The service provider distinguishes and marks those data from among the data referred to in paragraph 2, as such being necessary for providing services by electronic means in accordance with art. 22 paragraph 1.
4. The service provider may process, upon consent of s service recipient and for the purposes set forth in art. 19 paragraph 2 point 2, other data concerning the service recipient, which are not necessary for providing service by electronic means.
5. The service provider may process the following data describing the way of using the service provided by electronic means by a service recipient (traffic data):
1) denotations identifying the service recipient assigned on the basis of the data referred to in paragraph 1,
2) denotations identifying the telecommunication network terminal or a teleinformation system, which have been used by a service recipient,
3) information about commencement, termination and a range of every usage of the service provided by electronic means,
4) information about using of the service provided by electronic means by a service recipient.
6. The service provider provides the information on data referred to in paragraphs 1 – 5 to the state authorities for the needs of legal proceedings carried on by them.

The provider is therefore obliged to provide information on all categories of data listed in Article 18(1-5) of the PSEM, to the State authorities for the purpose of the proceedings conducted by them. The Inspector General noted that the disclosed information should also be understood as such data. The GIODO said that the provision of Article 18(6) of the PSEM are constructed in general terms and do not indicate either the types of bodies that may request such information, or the types of proceedings: criminal, civil, administrative or enforcement. The Inspector General noted that the provision of Article 18(6) of the PSEM only requires the provider to disclose information to State bodies, and it should not be interpreted broadly as the legal norm that is prohibiting the disclosure of such information to other entities. The GIODO decided that if the legislature had the intention to limit the disclosure of the information referred to in Article 18(1-5) of the PSEM, only for the bodies referred to in Article18(6) of the Act, it would explicitly formulate this provision, for example, by using the phrase “only”, which is a legislative method of defining the closed circle of entities, as it was provided in other regulations, for instance in the Article 66g and Article 66j § 4 of the Polish Act of 17 June 1966 on Administrative Enforcement Proceedings, or in the Article 72(1) of the Polish Act 5 August 2010 on Protection of Classified Information and in Article 105(1) of the Polish Act of 29 August 1997 Banking Law. The Inspector General noted that the legislature did not use the phrase “only” in the provisions of Article 218 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 subsequent amendments, in relation to an obligation to disclose, at the request contained in the order, to the court or the prosecutor any mail and packages and the data referred to in Article 180c and 180d of the Polish Act of 16 July 2000 on Telecommunications Law – TLA – (in Polish: Prawo telekomunikacyjne), published in Journal of Laws (Dziennik Ustaw) No 171, item 1800 with subsequent amendments.

Article 180c
1. The obligation referred to in Article 180a (1) shall cover the data necessary to:
1) trace the network termination point, telecommunications terminal equipment, an end user:
a) originating the call,
b) called;
2) identify:
a) the date and time of a call and its duration,
b) the type of a call,
c) location of telecommunications terminal equipment.
2. The minister competent for communications in agreement with the minister competent for internal affairs, having regard to the type of telecommunications activities performed by operators of a public telecommunications network or providers of publicly available telecommunications services, data specified in paragraph 1, costs of data collection and retention as well as the need to avoid multiple retention and storage of the same data, shall specify, by means of an ordinance:
1) a detailed list of data referred to in paragraph 1;
2) types of public telecommunications network operators or providers of publicly available telecommunications services obliged to retain and store the data.

Article 180d
Telecommunications undertakings shall be obliged to provide conditions for access and retention as well as to make available at their own cost the data referred to in Article 159 (1) (1) and (3) to (5), in Article 161 and in Article 179 (9) related to the provided telecommunications service and processed by them to authorized entities, to the court and to the prosecutor, under the terms and observing the procedures specified in separate provisions.

The Inspector General stressed that the legislature has indicated that only the court or the prosecutor is allowed to open the correspondence, mail and data, or order for their opening.

Article 218
§ 1. Offices, institutions and entities operating in post and telecommunications fields, customs houses, and transportation institutions and companies, shall be obligated to surrender to the court or state prosecutor upon demand included in their order, any correspondence or transmissions significant to the pending proceedings. Only the court and a state prosecutor shall be entitled to inspect them or to order their inspection.

The Inspector General also stressed that the above-cited provisions of the CRPC should not be applied in this case, because Promedica Care Sp. z o.o is not the authority conducting the proceedings in a criminal case, and the disclosed personal data will be used by it to initiate civil, not criminal proceedings. The GIODO indicated that Promedica may follow the procedure provided for in Article 29 of the PPD, and civil proceedings under the Civil Proceedings Code – CPC (in Polish: Kodeks Postępowania Cywilnego) of 17 November 1964, published in Journal of Laws (Dziennik Ustaw) No. 43, item 296, with subsequent amendments, regardless of actions taken under the criminal proceedings. Agora S.A. filed a complaint.

The Voivodeship Administrative Court in Warsaw in its judgment of 8 March 2012 II SA/Wa 2821/11 repealed the contested decision, and held that according to the provisions of Article 18(6) of the PSEM, the only one empowered to obtain data collected by the service provider within the meaning of that Act, are the State bodies. The PSEM does not contain any other provision, which serve as the basis for disclosure of data to the entities other than state authorities. The court stated that if the legislature’s intention was to give permission to obtain operational data to entities other than state authorities, it would have included a clear regulation providing for such permission in the PSEM. Data protection is a general rule. The service provider may process personal and operational data only in the extent and on terms defined in the PSEM. Only in the absence of regulations provided in the PSEM such processing may be based on an appropriate application of the PPD. The disclosure of data to third parties – such as Promedica Care – is breaking of that protection and as an exception to the rule cannot be interpreted broadly. GIODO filed a cassation complaint.

The Supreme Administrative Court in its judgment of 21 August 2013 case file I OSK 1666/12 dismissed it. The SAC held that any company or individual has the right to request ISPs to disclose e-mail addresses and IP addresses that are associated with the offensive entries.

See also “Polish regulations on personal data protection“, “Polish case law on personal data protection“.

Access to public information, case II SAB/Wa 10/13

August 8th, 2013, Tomasz Rychlicki

A Polish company requested the Ministry of Interior to disclose public information in the form of source code of software that is used by the Ministry in performing public tasks related to Voivodeships’ databases of citizens residence. The source code of a computer application was written by employees of the Ministry as part of their employment contracts. The Ministry did not answer the request and the Company filed a complaint on failure to act.

The Voivodeship Administrative Court in its judgment of 24 April 2013 case file II SAB/Wa 10/13 dismissed it. The Court ruled that according to the provisions of Article 1(1) of the Polish Act of 6 September 2001 on Access to Public Information – API – (in Polish: Ustawa o dostępie do informacji publicznej), published in Journal of Laws (Dziennik Ustaw) No. 112, item 1198, with subsequent amendments, each information on public matters constitutes public information in the understanding of the API and is subject to being made available on the basis of principles and under the provisions defined in this Act. The definition of “public information” is widely criticized for defining ignotum per ignotum. However, Article 6(1) of the API helps to clarify this problem.

Article 6. 1. The following information is subject to being made available, in particular on:
1) internal and foreign policy, including:
a) intentions of legislative and executive authorities,
b) drafts on normative acts,
c) programmes on realisation of public tasks, method of their realisation, performance and consequences of the realisation of these tasks,
2) entities, defined in Article 4, it. 1, including:
a) legal status or legal form,
b) organisation,
c) subject of activity and competencies,
d) bodies and persons performing functions therein and competencies,
e) property structure of entities, defined in Article 4, it. 1, points 3-5,
f) property they dispose of,
3) principles of functioning of entities, defined in Article 4, it. 1, including:
a) mode of conduct of public authorities and their organisational units,
b) mode of conduct of state legal persons and legal persons of local authorities in the area of performing public tasks and their activity within the frames of budget and non-budget economy,
c) methods of passing private-public acts,
d) methods of accepting and settling matters,
e) state of accepted cases, order of their settling or resolving,
f) conducted registers, books and archives and on methods and principles of making data there contained available,
4) public data, including:
a) contents and form of official documents, in particular:
– contents of administrative acts and other resolutions,
– documentation on the control and its effects as well as presentations, opinions, conclusions and statements of the entities having conducted the control,
b) opinion on public issues made by the bodies of public authority and by the public officers in the understanding of the provisions of the Penal Code,
c) contents of other presentations and assessments made by the bodies of public authority,
d) information on the condition of the state, local authorities and their organisational units,
5) public property, including:
a) property of the State Treasury and state legal persons,
b) other property rights to which the state and its debts are entitled to,
c) property of the units of local authority and professional and economic local authorities as well as property of legal persons of local authorities and the ill persons’ offices,
d) property of the entities, defined in Article 4, it. 1, point 5, coming from disposing of the property, defined in c. a) – c) as well as the profits from this property and its encumbrances,
e) incomes and losses of the commercial companies in which the entities, defined in c. a) – c) hold the dominant position in the understanding of the provisions of the Commercial Companies Code and disposal of this income and the method of covering losses,
f) public debt,
g) public assistance,
h) public burden.
2. The official document in the understanding of this Act is the text of declaration of will or knowledge, preserved and signed in any form by the public officer in the understanding of the provisions of the Penal Code within the frames of its competencies, directed to another entity or filed to the acts.

The Court ruled that with regard to the types of information listed in the above mentioned provision it should be emphasized, referring to definition of public information as any information about public affairs, that public information is such information that carries a message about public affairs. Bearing that in mind, the Court noted that the source code is a series of instructions and statements written in an understandable human programming language that describes the operations that should be performed by a computer, which is a result of the work of developers. The Court ruled that that the source code does not contain any message on public matters, and is only a tool used in computer programs. The fact that certain computer programs are used by public authorities to carry out public functions, does not prejudge that their source code is public information. According to established case law of administrative courts and legal commentators, disclosure of public information is made in the form of material and technical activities, and only the refusal to disclose public information and discontinuance of the proceedings is made according to the provisions of Article 16 (1) of the API, in the form of an administrative decision. However, in cases where the requested information is not deemed as public information, it is sufficient to inform the requesting party of this fact. And in any case such situation cannot be deemed as inactivity of the requested body. According to the Court, the requested information did not met the scope defined in the API.

Copyright law, case VI ACz 856/13

July 8th, 2013, Tomasz Rychlicki

The Appeallate Court in Warsaw in its judgment of 13 June 2013 case file VI ACz 856/13 dismissed the complaint against the order to submit technologically advanced equipment and software that supports electronic transactions, into the case file. The case was initiated by a Company that suspected its former licensee of using computer software despite the expiry of the license. Copyright infringement has to be properly proved by a plaintiff. In many cases, it does not require any excessive effort, especially when infringing products are already placed on the market by the defendant. Difficulties arise, however, when infringing goods are under the exclusive possession of the alleged infringer. The claim to secure evidence is provided for in Article 80(1)(i) 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 80. 1.
The court competent to hear the cases of infringement of the author’s economic rights in the locality where the offender conducts its activity or where his economic is located, also prior to filing suit, shall consider, within no more than 3 days of filing, an application of a party with legal interest therein:
1) for securing evidence and securing claims related thereto;

See “Trade mark law, case XXII GWo 68/12” for more on informational claims in Polish industrial property law proceedings.

Copyright law, case I A Cz 114/13

June 21st, 2013, Tomasz Rychlicki

The District Court in Białystok in its order of 27 December 2012 case file VII GCo 71/12 dismissed the request of a copyright owner to secure evidence and to order a Polish ISP to disclose information on the personal data (name and address) that was associated with IP addresses of computers that were identified by a requesting party, and from which, via online peer-to-peer applications, unknown persons have made available different audiovisual works.

The Appeallate Court in Białystok in its order of 7 February 2013 case file I A Cz 114/13 dismissed an appeal in this case. The Court noted that under Polish law there is no uniform procedure governing disclosure of personal data for the purposes of civil proceedings. The processing of personal data are governed primarily by the Polish Act of 29 August 1997 on the Protection of Personal Data – PPD – (in Polish: Ustawa o ochronie danych osobowych), unified text published in Journal of Laws (Dziennik Ustaw) of 6 July 2002, No. 101, item 926, with subsequent amendments, the Polish Act of 16 July 2000 on Telecommunications Law – TLA – (in Polish: Prawo telekomunikacyjne), published in Journal of Laws (Dziennik Ustaw) No 171, item 1800 with subsequent amendments and the Polish Act of 18 July 2002 on Providing Services by Electronic Means – PSEM – (in Polish: ustwa o świadczeniu usług droga elektroniczną), published in Journal of Laws (Dziennik Ustaw) No. 144, item. 1204 with subsequent amendments. These regulations guarantee the protection of personal data where their processing (including their disclosure) is always an exception to the rules for their protection. The provisions of Article 80 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 that were introduced to the system of protection of intellectual property rights as a result of the implementation of Directive 2004/48/EC, are solutions distinct and relatively independent of regulation included in the PPD, TLA and PSEM.

The Court ruled that pursuant to Article 80 of the ARNR, an entity with a legitimate interest may request the competent court, among others, to secure evidence (Article 80(1) of the ARNR) and to oblige other person than the one that is infringing copyrights, to provide information that is relevant to future claims, if such a third party provides services used in infringing activities and such actions lead directly or indirectly to profit or other economic benefits (Article 80(1)(iii)(c) of the ARNR).

Article 80. 1.
The court competent to hear the cases of infringement of the author’s economic rights in the locality where the offender conducts its activity or where his economic is located, also prior to filing suit, shall consider, within no more than 3 days of filing, an application of a party with legal interest therein:
1) for securing evidence and securing claims related thereto;
2) for obliging the person who infringed the author’s economic rights to provide information and any documentation specified by the court and being material to the claims referred to in Article 79(1);
3) for obliging a person other than the infringing party to provide information material to the claim defined in Article 79(1) on the origin, distribution networks, volume and price of goods or services which infringe the author’s economic rights, provided that:
a) such person has been confirmed to have goods which breach the author’s economic rights; or
b) such person has been confirmed to benefit from services which breach the author’s economic
rights; or
c) such person has been confirmed to render services used in any acts which the breach author’s
economic rights; or
d) the person specified in letters (a), (b) or (c) indicated a person who participated in production, manufacturing or distribution of goods or rendering of services in breach of the author’s economic rights and the purpose of any of the above actions is to generate, directly or indirectly, profit or any other economic benefit, although it does not include any actions by consumers acting in good faith.
2. If it admits any evidence or considers any applications referred to in paragraph 1, the court ensures that the operator’s business secrets as well as all other secrets protected by law are kept confidential.

In this case, the request of the copyright owner included both legal instruments. In terms of the preservation of evidence, however, was it was worded incorrectly, because as noted previously, the applicant exclusively requested personal data that would allow him for identifying potential defendants in cases of copyright infringement. The Court ruled that these data do not constitute evidence for the purposes of the process. As a result, the Court decided on the obligation to provide relevant information as provided in the Article 80(1)(iii)(c) of the ARNR. The Court agreed with the opinion that the condition for the application of this provisions, as in the each case of temporary measures, is to authenticate the claim i.e. provide prima facie evidence that there is/was copyright infringement, and to describe its legal interest in obtaining the information. First, it is necessary to demonstrate a prima facie evidence of the claim that the applicant holds the copyright to the work. In this regard, “in favor” of the entity seeking legal protection speaks presumption provided in Article 15 of the ARNR according to which it shall be presumed that the producer or publisher is the person whose surname or the name is provided in the goods on which the work is embodied, or made public in any way in connection with the dissemination of the work. This provision implements the rule of presumption of authorship or ownership, as set out in Article 5 of the Directive 2004/48/EC. The applicant, who is a film producer, presented a printout from its website containing information about audiovisual works concerned. The Court assumed that the annotation “rights reserved”, justify the inclusion of the applicant presumption.

The dispute in this case focused on the probable circumstances of unauthorized use (dissemination) of copyrighted works, and about the legal consequences, escalating in electronic communication, the phenomenon of exchange and distribution of files (mostly music or video), using peer 2 peer software. As a rule, it is assumed in the legal doctrine and the Appellate Court agreed with this opinion that, due to the fact that when the file is downloaded from the Internet by a user of a peer-to-peer program it is also simultaneously made available for downloading for others, such action is not part of an allowed personal use referred to in Article 23 of the ARNR.

However, the Court noted that the very presence of files (copyrighted works) in resources of a user of a peer to peer file sharing network cannot automatically lead to a conclusion as to its distribution (making available) for the purposes of copyright law. The Court was aware that there is a technical possibility to block other users’ access to resources on a hard disk, which results in the fact that at the time the file is downloaded via peer-to-peer, it only provides packages – pieces of work, to download for others, which does not allow for its replication. Secondly, in order to provide its resources in peer to peer networks, a user is required the run a proper computer program.

In this case, the Court agreed that all copyright works were made available beyond the allowed personal use (the concept similar to fair use). It has been proven that subscribers of the ISP have acquired copyrighted works (movies) via peer-to-peer networks (using programs such as µTorrent and BitComet), which were produced by the applicant. These movies were actually made available to other users, as it was testified by a witness. As a result, the Court has found the argument of a probable copyright infringement of audiovisual works owned by the applicant, as justified. There was no doubt also for the Court that the ISP is an entity referred to in the provisions of Article 80(1)(iii)(c) of the ARNR. The company provides commercial services that are used for public sharing of unauthorized copyrighted works – the ISP provides access to Internet for a fee, which is a forum of exchange and distribution of audiovisual files within the peer to peer networks. The Court agreed that the applicant had legitimate interest (locus standi) in obtaining relevant information. Such information would allow for identification/personalization of Internet users infringing copyrights, in order to properly initiate civil proceedings against them, and the proper preparation of a lawsuit. The Court noted that the information on the distribution networks, referred to in Article 80(1)(iii) of the ARNR, include, in principle, the data on entities (names and addresses) who unauthorized distribute works protected by copyright law and therefore infringe the copyrights of their owners. Consequently, pursuant to provisions of Article 80(1)(iii) of the ARNR the copyright owner of audiovisual works may require the ISP, to disclose personal data (name and address of residence) of entities who share and distribute audiovisual works protected by copyright in peer to peer networks.

On the basis of Article 8 of Directive 2004/48/EC, providing information that would be used for the protection of intellectual property rights is conditional, and it’s based on the proportionality of the request. The principle of proportionality expresses the idea of making only those activities that are essential and necessary to achieve a particular purpose and those that are appropriate in the circumstances of a case, i.e. they restrict the rights of others as little as it is possible. In this situation, it was necessary for the Court to consider whether in the circumstances of this case, the objective of protecting intellectual property rights justified the abandonment of the protection of personal data of entities who allegedly infringed copyrights. The guidance on the interpretation of these rules are provided in the Directive itself, and more specifically in the provisions its preamble. Namely, in section 14, the Community lawmakers have clearly indicated that the measures include in Article 8 section 1 of Directive need to be applied only in respect of acts carried out on a commercial scale.. The reason for this is certainly the fact that commercial activities are carried out for direct or indirect economic benefit on a large scale and thus significantly affect the property rights of the creators of works. The principle of proportionality provided in Article 8 of Directive 2004/48/EC is also incorporated in Article 80(1)(iii) of the ARNR, which means that the disclosure of information, and the subject of the data, in particular personal data, the Court should decide, taking into account the weight and the scale of the infringement of copyrights, especially from the perspective of the actions of persons violating the law, for profit.

According to the Appeallate Court, the applicant has failed to demonstrate that the request for access to personal data of individuals is in line with the principle discussed. First of all, on the basis of the evidence materials, it could not be assumed that different users have made available audiovisual works for commercial purposes. Secondly, the attached evidence showed that the case was dealing with eight different users who with the help of peer-to-peer networks have shared with only one movie, so the scope of the alleged infringements of copyright applicant, was not significant.

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

E-access to public information, case I OSK 175/13

May 25th, 2013, Tomasz Rychlicki

The Voivodeship Administrative Court in Warsaw in its judgment of 24 October 2012 case file II SAB/Wa 245/12 ruled that official topographic maps that were created and are kept in the databases by the Head Office of Geodesy and Cartography (GUGiK) are public information and must be made ​​available on the request of the creator of dobraulica.pl website. GUGiK filed a cassation complaint.

The Supreme Administrative Court in its judgment of 5 April 2013 case file I OSK 175/13 anulled the contested judgment and ruled that the VAC incorrectly applied provisions of law, because in this case, the law on Geodetic and Cartography should be used as a legal basis for deciding the issue of public information and re-use.

See also “Polish case law on e-access to public information“.

Personal interests, case IV CSK 270/12

April 19th, 2013, Tomasz Rychlicki

A Polish lawyer who felt insulted by the comments that appeared on znanyprawnik.eu website, sued its owner. The case went through all instances. The Polish Supreme Court in its judgment of 18 January 2013 case file IV CSK 270/12 dismissed the cassation complaint filed by the offended lawyer. The Court held that all comments were not about facts that could be verified, only described the experience of cooperation with a lawyer and did not contain offensive or vulgar expressions. The plaintiff is an attorney, a public person performing certain services in the field of law and his services should be subject to assessment, which is not always favorable. Due to the nature of the activities carried out by the plaintiff, the limits of acceptable criticism are wider, because the person undertaking public activities does it voluntary, yet inevitable, undergo evaluation and public reaction.

E-access to public information, case II SAB/Wa 513/12

March 20th, 2013, Tomasz Rychlicki

A Polish citizen wanted to know if the Mayor of Tłuszcz town and municipality has issued any official documents that would define and regulate actions of the municipality on Facebook. He decided to post a request to disclose such information using the official Facebook’s page of Tłuszcz’s municipality. After two weeks of inactivity, he filed a complaint against the mayor.

The Voivodeship Administrative Court in Warsaw in its decision of 15 March 2013 case file II SAB/Wa 513/12 dismissed the complaint and ruled that a post on Facebook is not a proper request for disclosure of public information.

See also “Polish case law on e-access to public information“.

Criminal law, case II K 1331/10

March 20th, 2013, Tomasz Rychlicki

Odsiebie.com was a hosting website operated by couple of administrators that were charged by the Prosecutor for fencing of computer programs and aiding in their disposal. The owners were detained for 24 hours and the domain name was locked. The Prosecutor Office was informed about alleged criminal activity by the employees and lawyers representing ZPAV i FOTA – two big Collecting Societies in Poland.

The Regional Court for Wrocław Śródmieście, II Wydział Karny in its judgment of 6 March 2012 case file II K 1331/10 acquitted administrators of all charges. The appeal filed by the Prosecutor Office was dismissed by the District Court in Wrocław in its judgment of 6 February 2013.

Procedural law, case II SA/Go 43/13

March 13th, 2013, Tomasz Rychlicki

The Head of District Labour Office called an unemployed person to appear before the Office in order to confirm readiness for employment. The Head director informed that the absence will result in the deprivation status of the unemployed. The unemployed person informed the Office that he was not able to appear, becasue of the unexpected surgery. He also requested the Office to appoint a new date to appear, and for delivery of correspondence by e-mail. The Office sent another call by mail. The unemployed did not appear before the Office, and by the decision of the Foreman, he lost unemployment status and privileges. He decided to file a complaint against this decision.

The Voivodeship Administrative Court in Gorzów Wielkopolski in its judgment of 28 February 2013 case file II SA/Go 43/13 annulled the contested decision, ruled it unenforceable. The Court ruled that according to the provisions of Article 391 of the Administrative Proceedings Code – APC – (in Polish: Kodeks postępowania administracyjnego) of 14 June 1960, published in Journal of Laws (Dziennik Ustaw) No 30, item 168, consolidated text of 9 October 2000, Journal of Laws (Dziennik Ustaw) No 98, item 1071 with subsequent amendments, the delivery should be be made by means of electronic communication if a party or other participant to the administrative proceedings applied to the public administration authority for the service, or consented to having the service effected by such means.

Spam law, case II W 572/12

February 5th, 2013, Tomasz Rychlicki

The Regional Court in Dzierżoniów in its judgment of 9 January 2013 case file II W 572/12 sentenced a Polish citizen for the fine in a sum of 300 Polish złoty for sending unsolicited e-mail to two persons. This case was based on the indictment afforded for in the Article 24 of the Polish Act of 18 July 2002 on Providing Services by Electronic Means – PSEM – (in Polish: ustwa o świadczeniu usług droga elektroniczną), published in Journal of Laws (Dziennik Ustaw) No. 144, item. 1204 with subsequent amendments. Anyone, who transmits by electronic communications means unsolicited commercial information, should be liable to fine. The prosecution of this offence is conducted on the request of the harmed party. Recent amendments to the Polish Telecommunication law introduced also new anti-spam provisions to the PSEM. As of 22 January 2013, sending unsolicited commercial information addressed to the specified recipient, who is a natural person, by electronic communications means, in particular electronic mail is prohibited. These amendments made the ban on sending unsolicited commercial information on whether the spam recipient is a natural person. Previous provisions of the PSEM did not provide such prerequisite.

Criminal law, case II K 342/12

January 22nd, 2013, Tomasz Rychlicki

A Polish citizen was charged by the Prosecutor Office for downloading from the Internet of 10 songs in MP3 file format in order to gain material benefits. The Regional Court in Mr.gowo in its judgment of 5 December 2012 case file II K 342/12 sentenced the defendant to imprisonment for six months and a fine, and suspended the execution of this judgment for three years. The Court ruled total penalty of 8 month of imprisonment and a fine, because the defendant was also charged for an illegally obtained copy of the Windows XP OS.

Personal data protection, case I OZ 850/12

January 20th, 2013, Tomasz Rychlicki

The Inspector General for Personal Data Protection in its decisions of 1 April 2012 nos. DOLiS/DEC-318/12/23575, 23580, 23585 ordered a Polish company to disclose IP addresses of computers. This information was required in other proceedings. The company filed a complaint against this decision and requested the court to stay its execution.

The Voivodeship Administrative Court in Warsaw in its order of 14 August 2012 case file agreed and GIODO filed a complaint against it.

The Supreme Administrative Court in its order of 21 November 2012 case file I OZ 850/12 dismissed it.

E-access to public information, case II SAB/Wa 335/12

December 20th, 2012, Tomasz Rychlicki

Polish citizen demanded the publication of his complaint against the cancellation of the proceedings of his action that was filed before the Constitutional Tribunal, on Tribunal’s website. He argued that this is public information and should be widely available. The Tribunal refused. Therefore, he decided to submit a complaint for failure to act to the Voivodeship Administrative Court in Warsaw. Legal counsel representing the Tribunal argued at the hearing that there is no legal basis for publication of such complaint on the Internet, and explained that the complaint has been filed after a final decision to discontinue the proceedings and, therefore, should not at all be processed by.

The Voivodeship Administrative Court in its judgment of 18 December 2012 case file II SAB/Wa 335/12 dismissed the complaint. The Court ruled that public authorities are required to publish information if they are obliged to do so by law. The Court pointed out that there is a failure to act if the authority refuses to disclose information, which is required to make available. According to the Court, the complaint is not such information. In addition, according to the decree of the President of the Constitutional Tribunal on the disclosure of pleadings at www.trybunal.gov.pl website, under the link “cases”, the following materials are available: i) the decision for posting complaints, but it does not apply at the initial stage of deciding on the admission of a complaint or request, ii) an electronic copy of the complaint (with supplementary documents), without attachments after referring the constitutional complaint (application) by the Court to decide on the mertis.

See also “Polish case law on e-access to public information“.

E-access to public information, case II SAB/KR 152/12

November 28th, 2012, Tomasz Rychlicki

In another case of Tomasz Zieliński, the author of transportoid.com service and software available for Android and Windows Phone that provides timetables of public municipal transport systems, the Voivodeship Administrative Court in Kraków in its judgment of 26 November 2012 case file II SAB/KR 152/12 ruled that source code that was used to create a website with public communication timetables is not deemed as public information.

See also “Polish case law on e-access to public information“.

E-access to public information, case II SAB/Kr 105/12

October 19th, 2012, Tomasz Rychlicki

Tomasz Zieliński, the author of transportoid.com service and software available for Android and Windows Phone that provides timetables of public municipal transport systems, requested Miejskiego Przedsiębiorstwo Komunikacyjne (Municipal Transport Company) in Kraków to disclose public information in the form of electronic database of timetables. MTP refused and argued that the request goes beyond the the Act on Access to Public Information, apart from, the requested information is available on the website. Mr Zieliński filed a complaint on failure to act.

The Voivodeship Administrative Court in Kraków in its judgment of 18 September 2012 case file II SAB/Kr 105/12 agreed with Mr Zieliński and ordered MTP to take appropriate actions that were indicated in the request.

See also “Polish case law on e-access to public information“.

E-access to public information, case I OSK 1203/12

October 19th, 2012, Tomasz Rychlicki

The Association of Leaders of Local Civic Groups (SLLGO) requested the Polish Prime Minister Donald Tusk to disclose documents and the correspondence, including e-mails, that concerned recent legislative works on the amendments to the Polish Act on Access to Public Information. The Prime Minister disclosed part of the requested materials, but without indicated e-mails. The representative of the Prime Minister argued that e-mails are used to send text messages, they are used as internal correspondence in the office, as well as with external entities. E-mails consists of various documents of varying importance, significance and category (from the private and business). However, it is not a system of receiving and processing of official documents and the exchange of official correspondence, including these on the legislative process. The system serves for communications between certain individuals, rather than for the presentation of the official positions of the administration. The SLLGO filed a complaint and argued that the Prime Minister failed to act in order to disclose the requested information.

The Voivodeship Administrative Court in Warsaw in its judgment of 1 December 2012 case file II SAB/Wa 295/11 agreed with the SLLGO. The Court ruled that requested e-mails are not private, and they are used to exchange opinions, positions and evaluations between persons exercising public functions. There was no doubt that such electronic means were used for the evaluation and position with respect to the specific provisions of the Act amending the Act on Access to Public Information and other laws. The Court did not agree with the Prime Minister that such exchange of information was intended for internal use and it has working and preparatory nature. The Prime Minister filed a cassation complaint.

The Supreme Administrative Court in its judgment of 14 September 2012 case file I OSK 1203/12 annulled the contested judgment. The Court agreed with the PM and decided that e-mails are internal documents. This issue has been resolved in the same way by the Supreme Administrative Court in its judgment of 21 June 2012 case file I OSK 666/12. See “E-access to public information, case I OSK 666/12“.

See also “Polish case law on e-access to public information“.