Archive for: computer law

Trade mark law, case C-236/08

September 6th, 2011, Tomasz Rychlicki

The Court of Justice of the EU in its judgment of of 23 March 2010 joinded Cases C-236/08 to C-238/08 ruled that the Article 5(1)(a) of First Council Directive 89/104/EEC of 21 December 1988 to approximate the laws of the Member States relating to trade marks and Article 9(1)(a) of Council Regulation (EC) No 40/94 of 20 December 1993 on the Community trade mark must be interpreted as meaning that the proprietor of a trade mark is entitled to prohibit an advertiser from advertising, on the basis of a keyword identical with that trade mark which that advertiser has, without the consent of the proprietor, selected in connection with an internet referencing service, goods or services identical with those for which that mark is registered, in the case where that advertisement does not enable an average internet user, or enables that user only with difficulty, to ascertain whether the goods or services referred to therein originate from the proprietor of the trade mark or an undertaking economically connected to it or, on the contrary, originate from a third party.

2. An internet referencing service provider which stores, as a keyword, a sign identical with a trade mark and organises the display of advertisements on the basis of that keyword does not use that sign within the meaning of Article 5(1) and (2) of Directive 89/104 or of Article 9(1) of Regulation No 40/94.

3. Article 14 of the Directive 2000/31/EC of the European Parliament and of the Council of 8 June 2000 on certain legal aspects of information society services, in particular electronic commerce, in the Internal Market (‘Directive on electronic commerce’) must be interpreted as meaning that the rule laid down therein applies to an internet referencing service provider in the case where that service provider has not played an active role of such a kind as to give it knowledge of, or control over, the data stored. If it has not played such a role, that service provider cannot be held liable for the data which it has stored at the request of an advertiser, unless, having obtained knowledge of the unlawful nature of those data or of that advertiser’s activities, it failed to act expeditiously to remove or to disable access to the data concerned.

Personal interests, case III CSK 73/07

July 24th, 2011, Tomasz Rychlicki

Professor Andrzej Gregosiewicz posted very negative press articles and comments regarding homeopathic medicines, in particulr Oscillococcinum preparation that is produced by the French company Boiron. He also criticized regulations included in the Polish Pharmaceutical law. His publications were also available on different websites. These articles and comments included, among others, statements that homeopathic medicines may carry bird flu virus HN51, Professor Gregosiewicz argued that taking some homeopathic medicines is similar to suicide. He has named Oscillococcinum as the most widely used homeopathic product with the bird flu virus, and claimed that its producer was involved in bribery during the legislative process, in order to gain favourable regulations. Boiron Societé Anonyme sued for the infringement of personal interest. The case went through all instances.

The Supreme Court in its judgment of 10 May 2007 case file III CSK 73/07 held that the belief that someone is using the constitutionally guaranteed freedom of expression and he acts in the interest of public health is not a sufficient basis to consider certain actions as repealing the illegality of expression.

Personal interest, case I ACz 462/11

June 20th, 2011, Tomasz Rychlicki

A Polish Internet user has started a Facebook account in which he accused a travel agency Alfa Star from Radom of dishonesty and presented bad reviews of its services. Other Facebook users also started to post negative comments. The travel agency filed a suit for protection of personal interest together with the injunction to delete the Facebook account along with all the comments until the final decision in the case is rendered. The District Court in Radom granted the injunctive relief. Bartosz C. filed a complaint against this decision. The Appellate Court in Lublin in its order of 30 May 2011 case file I ACz 462/11 reversed the injunction. The Court noted that although the company has shown its interest in granting the injunction, it also seek this way to satisfy all claims included in the suit. If, before the end of the proceeding, the company would obtain the injunction to remove an account, this would actually satisfy its claims. The Court noted that the injunction should be granted to the extent that the plaintiff is afforded the adequate legal protection, and the defendant it not burden more than it’s needed. Facebook allows for the deactivation of an account and such injunction should be considered by the District Court as adequate injunction.

Database protection, case C-46/02

February 7th, 2011, Tomasz Rychlicki

The Court of Justice of the EU in its judgment of 9 November 2004 Case C-46/02 Fixtures Marketing Ltd v Oy Veikkaus Ab, held that the expression “investment in … the obtaining … of the contents” of a database in Article 7(1) of Directive 96/9/EC of the European Parliament and of the Council of 11 March 1996 on the legal protection of databases must be understood to refer to the resources used to seek out existing independent materials and collect them in the database. It does not cover the resources used for the creation of materials which make up the contents of a database. In the context of drawing up a fixture list for the purpose of organizing football league fixtures, therefore, it does not cover the resources used to establish the dates, times and the team pairings for the various matches in the league.

Personal data protection, case II SA/Wa 1212/10

February 4th, 2011, Tomasz Rychlicki

The case of Tomasz W. and his image treated as personal data still continues. See “Personal data protection, case I OSK 667/09“. GIODO annulled its earlier decision, however it also refused to take account Tomasz W. requests in its new decision. GIODO ruled that personal data (photos and captions) of Tomasz W. are not presented on the website, and are not publicly available because they were removed from the specified address. GIODO also noted that Nasza-Klasa is still processing the personal data treating it as evidence, because it keeps them on its servers and in the system’s memory. GIODO finally held that the Company, as controller, is processing these data under provisions of Article 23(1)(v) of the PPD, under which such the processing of data is permitted because it is necessary for the purpose of the legitimate interests pursued by the controller and that the processing does not violate the rights and freedoms of the data subject. Among the reasons justifying the data processing, GIODO mentioned the possibility of establishing the responsibility of the recipient for violations of the Terms of Service that were set by the Company. This judgment is not final yet. GIODO filed a cassation complaint.

The Voivodeship Administrative Court in Warsaw in its judgment of 1 December 2010 case file II SA/Wa 1212/10 ruled that, these circumstances do not fulfill the conditions for legitimate interests of data processing. It should be noted that the condition relates to the existing and unquestionable situation, so if there is a need to demonstrate a need to claim in business, not a situation where the data are processed for eventual trial and the possible need to prove that personal data obtained without the consent of the person concerned shall be processed in accordance with the law. The Court also noted that Tomasz W. only announced but he did not initiate any courts proceedings against Nasza-Klasa. Therefore, according to the Court, Nasza-Klasa was not allowed to process personal data only to protect itself against any future and uncertain claims mentioned by Tomasz W. Otherwise, there are doubts how long to process personal data if Tomasz W. fails to comply with his announcement.

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

Tax law, case I SA/Wr 1080/10

November 27th, 2010, Tomasz Rychlicki

The Voivodeship Administrative Court in Wrocław in its judgment of 24 November 2010 case file I SA/Wr 1080/10 ruled that the client can deduct all the VAT in case of advance payment of fees for the entire period of software maintenance. The position of a tax authority stating that deduction is possible only in the settlement period in which service will be completely provided, is incorrect. It is another judgment favorable to taxpayers.

Patent law, case file II GSK 85/11

November 22nd, 2010, Tomasz Rychlicki

The Voivodeship Administrative Court in Warsaw in its judgment of 30 June 2010 case file VI SA/Wa 595/10 held that the terms “solution of a technical nature” or “technology” are not defined in the European Patent Convention. Thus, the development of these concepts depends on the practice of the EPO. There is no doubt that in practice, the EPO is using much more liberal criteria for assessing the patentability of computer-implemented inventions than in the initial period of application of the EPC. However, this position was not accepted by all parties to the Convention. In addition, the Enlarged Board of Appeal on 12 May 2010, refused to resolve the problem presented by the President of the EPO, on the interpretation of the exclusion of computer programs “as such” in the context of the criteria for patentability of inventions relating to computer programs, leaving the question to practice. It can be concluded that the practice of liberalization of evaluation criteria for patentability of computer-implemented inventions was not accepted by all experts of the EPO. There are cases of the EPO that were based on the same provisions of the Convention but came with divergent decisions, as well as cases in which almost identical provisions of the Convention and national laws are interpreted, respectively, by the EPO or national bodies in different ways. This case concerned the International Patent Application PCT/EP99/08958 “Record carrier, apparatus and method for playing back a record carrier, method of manufacturing a record carrier”.

The Supreme Administrative Court in its judgment of 19 March 2012 case file II GSK 85/11 reversed the contested judgment and the decision of the PPO. The Court held that the decree of the President of the Polish Patent Office on the patentability of inventions has an internal character, and it can not be the basis of the justification of the decision.

Tax law, case III SA/Wa 1008/10

September 14th, 2010, Tomasz Rychlicki

The Polish company conducts its business based mainly on providing IT services and sales of software and hardware. The Company enquired the Tax Office whether the fees paid by it to the contractors based in the U.S. and the Netherlands in connection with making available of software, are subject to the flat tax at source of the distribution of software, i.e. in Poland.

The Voivodeship Administrative Court in its judgment of 13 September 2010 case file III SA/Wa 1008/10 held that fees paid for the use of a computer program does not fall within the definition of royalties specified in the agreements on avoidance of double taxation with Holland and the USA. Therefore can not be taxed in Poland.

E-access to public information, case I OSK 1727/09

September 4th, 2010, Tomasz Rychlicki

A Polish law firm requested the Office of the Attorney General of the State Treasury to disclose public information in the form of all unfavorable for the State Treasury decisions of common courts and the Supreme Court along with their written justifications, issued in 2008, in cases of reprivatization, in which the State Treasury was represented by the Attorney General of the State Treasury. The President of the Office of the Attorney General of the State Treasury refused and argued that the requested information has the nature of information processed, therefore, the applicant must also show particularly important public interest. The law firm filed a complaint against this decision.

The Voivodeship Administrative Court in its judgment of 23 September 2009 case file II SA/Wa 978/09 reversed the contested decision and held that legal commentators and the case-law formed the view that information deemed as simple is information that its substance does not change prior to its disclosure. However, the processed information is qualitatively new information that did not exist in the final content and form, although its source is in the materials held by the entity obliged to disclose such information. Thus, a fundamental feature that distinguishes processed public information from simple public information is that the authority does not posses processed public information, and for its production, it is necessary to carry out certain operations and activities on simple public information held by the entity, which results in the creation of the new quality of information. This new quality information is not only technically another compilation of existing information – another way of ranking previously held information, but different, qualitatively new information, usually leading to a specific assessment of the phenomenon, whether a particular interpretation, finding differences or similarities. In order to produce the processed information it is necessary to submit information under analysis, synthesis and produce in this way a new quality of information that does not result from the wording of any unit of information that was subject to processing, in general, it results from the sum of (a set of) individual pieces of information that has been processed. Therefore, the processed information does not results from a different order of possessed information, but from the new immanent quality that was obtained from the processing of new information. Only ranking and listing of judgments according to a specific criterion does not bear characteristic of processed information, but it has the nature of labor-intensive information, and creations of such information can only decide on the cost of production. Time-consuming, costly and organizational difficulties – technical or office that are associated with the creation and development of a public information cannot be treated as the exempt from the obligation to disclose of such information. Actions devoted to the necessary anonymization of the selected judgments do not constitute the production of processed information, because the anonymization process is a technical operation, as a result of which new information is not created.

The Supreme Administrative Court in its judgment of 3 August 2010 case file I OSK 1727/09 dismissed the cassation complaint filed by the President of the Office of the Attorney General of the State Treasury.

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

Telecommunications law, case I OSK 1079/10

August 3rd, 2010, Tomasz Rychlicki

This is the continuation of a story described in “Personal data protection, case II SA/Wa 1598/09“. The Supreme Administrative Court in its order of 15 July 2010 case file I OSK 1079/10 decided to stay the execution of the decision issued by the Inspector General for Personal Data Protection (GIODO), and ruled that the Polish Act of 16 July 2000 on Telecommunications Law – TLA – (in Polish: Prawo telekomunikacyjne), published in Journal of Laws (Dziennik Ustaw) No 171, item 1800 with subsequent amendments, provides broader protection of personal data because of telecommunications confidentiality, than the provisions of the Act of 29 August 1997 on the Protection of Personal Data – PPD – (in Polish: Ustawa o ochronie danych osobowych), published in Journal of Laws (Dziennik Ustaw) of 29 October 1997, No. 133, item 883, unified text published in Journal of Laws (Dziennik Ustaw) of 6 July 2002, No. 101, item 926, with subsequent amendments. The Court held that the disclosure of IP addresses which enable identification of specific individuals, that was ordered during administrative proceedings initiated with regard to disclosure of such data, while such proceedings did not ended with judgment in force, may violate the provisions of Article 160 of the TLA.

Article 160.
1. An entity participating in the performance of telecommunications activities within public networks and entities cooperating with it shall keep the telecommunications confidentiality.
2. Entities referred to in paragraph 1 shall maintain due diligence, within the scope justified by technical or economic reasons, while securing telecommunications equipment, telecommunications networks and data collections from disclosing the telecommunications confidentiality.
3. A person coming into possession of a message not meant to be read by him/her when using radio or terminal equipment shall keep the telecommunications confidentiality. The provisions of Article 159 (3) and (4) shall respectively apply.
4. The recording of a message acquired in a manner described in paragraph 3 by a body executing control of telecommunications activities in order to document a violation of a provision of the Act, shall not be a violation of the telecommunications confidentiality.

While assessing the validity of the request to stay the execution of GIODO’s decision to disclose the requested IP address at this stage of proceedings, the Court agreed with the author of the cassation complaint, that the execution of the questioned decision at this stage makes it impossible to reverse the actions taken after the disclosure of the IP addresses, and such action should be seen as causing the effects that are difficult to reverse according to Article 61(3) of the Act of 30 August 2002 on the Law on Proceedings Before Administrative Courts – PBAC – (in Polish: Prawo o postępowaniu przed sądami administracyjnymi), published in Journal of Laws (Dziennik Ustaw) No 153, item 1270, subsequent amendments.

§ 1 Filing a complaint does not stay the execution of the act or actions.

§ 3 After the delivery of a complaint to the court, the court may issue at the request of the applicant, the order to stay the execution, in whole or in part of the act or actions referred to in § 1, if there is a risk of causing significant damage or cause to be difficult to reverse, with the exception of the provisions of local law which entered into force, unless the special Act excludes the stay of their execution. The refusal to stay the execution of the act or actions by the authority, does not deprive the applicant of action to the court. This also applies to acts issued or adopted in all proceedings conducted within the same case.

The SAC held that if the Supreme Administrative Court would agree with the cassation complaint filed against the judgment of the Voivodeship Administrative Court of 3 February 2010 case file II SA/Wa 1598/09, the effects of the execution of the questioned decision could not be reversed, because the IP address identifying a specific person is available to another participant in the proceedings. Accordingly, the court held that the correct solution at this stage of proceedings, is to stay the execution of the questioned decision also with a view to the impact of which its execution might result in, as well as the nature of the protection of personal data resulting from the relevant regulations such as, inter alia, the TLA.

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

Criminal law, case III KK 234/7

July 26th, 2010, Tomasz Rychlicki

Barbara W. was charged by the Prosecutor for insulting Mieczysław W. by posting on 30 June 2005 comments regarding his peron such “erotomaniac” on a website ocen.pl that is used to evaluate academics by their students. The charges were based on the provisions of Article 212 of the Criminal Code – CRC – (in Polish: Kodeks Karny) of 6 June 1997, published in Journal of Laws (Dziennik Ustaw) No 88, item 553, with subsequent amendments.

Chapter XXVII
Offences against Honour and Personal Inviolability
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.

The case went through all instances. The Supreme Court in its order of 7 May 2008 case file III KK 234/7 dismissed the cassation filed by Mieczysław W. and ruled that the provisions of Article 216 of the CRC should be invoked in this case, instead of Article 212 of the CRC.

Article 216
§ 1. Whoever insults another person in his presence, or though in his absence but in public, or with the intention that the insult shall reach such a person,
shall be subject to a fine or the penalty of restriction of liberty .
§ 2. Whoever insults another person using the mass media,
shall be subject to a fine, the penalty of restriction of liberty or the penalty of
deprivation of liberty for up to one year.

The Court ruled that the Internet is a medium of communication, as provided for in Articles 212 § 2 and 216 § 2 of the CRC, by means of which the offender may commit both defamation and insult. However, it was impossible in the current state of the law to rule that the mere provision of a computer to a third party decides on the criminal responsibility of its owner, in case if turned out that a person using such computer would be guilty of the offense. The Court held also that freedom of the press and other mass media that is guaranteed in the Article 14 of the Constitution, should also include media, as referred to in Article 216 § 2 and 212 § 2 of the CRC.

Personal interest, case VI ACa 1402/09

July 16th, 2010, Tomasz Rychlicki

The Appellate Court in Warsaw in its judgment of 15 July 2010 case file VI ACa 1402/09 held that even if a website only republishes articles or summaries of works published in major periodicals, it is not absolved from responsibility for infrigement of personal interests of a person who was described in such an article.

Computer crimes, case I KZP 7/10

July 9th, 2010, Tomasz Rychlicki

The Supreme Court in its order of 29 June 2010 case file I KZP 7/10 held that, the prescription of defamation crime is counted from the date of publication of the offensive content. This crime is defined in the provisions of Article 212 of the Criminal Code – CRC – (in Polish: Kodeks Karny) of 6 June 1997, published in Journal of Laws (Dziennik Ustaw) No 88, item 553, with subsequent amendments.

Article 212. § 1. Whoever imputes to another person, a group of persons, an institution or organisational unit not having the status of a legal person, such conduct, or characteristics that may discredit them in the face of public opinion or result in a loss of confidence necessary for a given position, occupation or type to activity
shall be subject to a fine, the penalty of restriction of liberty or the penalty of deprivation of liberty for up to one year.
§ 2. If the perpetrator commits the act specified in § 1 through the mass media
shall be subject to a fine, the penalty of restriction of liberty or the penalty of deprivation of liberty for up to 2 years.
§ 3. When sentencing for an offence specified in §1 or 2, the court may adjudge a supplementary payment in favour of the injured person or of the Polish Red Cross, or of another social purpose designated by the injured person a supplementary payment (nawiązka).
§ 4. The prosecution of the offence specified in § 1 or 2 shall occur upon a private charge.

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

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

Internet domains, case I ACa 1334/07

June 17th, 2010, Tomasz Rychlicki

The District Court in Warsaw in its judgment of 29 August 2007, case file XVI GC 756/06 dismissed the complaint filed by “Euro–net” sp. z o.o. against the judgment of the Court of Conciliation for Internet Domains at the Polish Chamber of Information Technology and Telecommunications of 23 March 2006 case file 22/05/PA in which the Court of Conciliation dismissed the “Euro-net” complaint against Rafał Falęcki in case of infringement of trade mark rights and unfair competition delict/tort concerning eurortv.com.pl domain name.

The Appellate Court in Warsaw in its judgment of 16 April 2008 case file I ACa 1334/07 dismissed the appeal, although it also found that some of the allegations included in the complaint proved to be accurate. The Court of Conciliation violated the adversarial rule because it has conducted an investigation of evidence ex officio, by looking on web pages and performing a search for disputed words “euro” and “rtv” in Google. The Court has not made any survey protocol or notes. This was made personally by the arbitrator without a request of both parties, however, the parties have not raised any comment to that evidence. The Court of Conciliation should issue the provision of evidence, indicating the date and place to carry out, so the parties could participate in this investigation. However, the appeal did not contain any allegations as to the veracity of the abovementioned evidence. The court may conduct investigation of evidence ex officio and on its own initiative but it should do it only in situations of an exceptional nature.

The Appellate Court did not agree with the “Euro-net” that the circumstances in which the investigation of evidence was conducted required special knowledge, and therefore should be subject to expert opinion. The Court of Conciliation made only a visual overview of the web pages of the plaintiff and the defendant, to which it was not necessary to posses special knowledge in the field of IT. The Appellate Court held that since the issue of the case was the infringement of “Euro-net” rights of protection for trade marks that was allegedly made by Rafał Falęcki in the Internet, therefore the inspection of his websites was sufficient way to determine whether and how the defendant used plaintiff’s trademarks. The expertise is not needed for such action, because a regular Internet user usually does not have such knowledge. It was a regular Internet user who could be mislead, in particular by a risk of associating the domain name with a registered trade marks, as defined in Article 296(2)(ii) of the Polish Act of 30 June 2000 on Industrial Property Law – IPL – (in Polish: ustawa Prawo własności przemysłowej), published in Journal of Laws (Dziennik Ustaw) of 2001 No 49, item 508, consolidated text of 13 June 2003, Journal of Laws (Dziennik Ustaw) No 119, item 1117, with subsequent amendments.

2. Infringement of the right of protection for a trademark consists of unlawful use in the course of trade of:
(ii) a trademark identical or similar to a trademark registered in respect of identical or similar goods, if a likelihood of misleading the public, including in particular a risk of associating the trademark with a registered trademark, exists;

However, there were no doubts for the Court that provisions of article 153 of the IPL mean that one cannot infringe the protection rights for a trade mark in the Internet.

Article 153
1. The right of protection shall confer the exclusive right to use the trademark for profit or for professional purposes throughout the territory of the Republic of Poland.
2. The term of the right of protection shall be 10 years counted from the date of filing of a trademark application with the Patent Office.
3. The term of protection may, at the request of the right holder, be extended for subsequent ten-year periods in respect of all or of a part of the goods.
4. The request referred to in paragraph (3) shall be submitted before the expiration of a running protection period, however not earlier than one year before the expiration thereof. The request shall be submitted together with the payment of a due protection fee.
5. The request referred to in paragraph (3) may also be submitted, against payment of an additional fee, within six months after the expiration of a protection period. The said time limit shall be non-restorable.
6. The Patent Office shall make a decision on refusal to extend the term of protection for a trademark, where the request has been submitted after the expiration of the time limit referred to in paragraph (5) or the due fees referred to in paragraphs (4) and (5) have not been paid.

According to the Court, one cannot use signs (or its elements) or similar trade marks, in its Internet domain names, if its business deals with selling the same group of products. There was no question that the mentioned above rule belongs to the fundamental socio-economic principles of the legal order of the Republic of Poland. However, in this case, such conditions were not met, bacuse all signs constituting “Euro-net” trade marks and used by Rafał Falęcki lack distinctive character, there was no risk of confusion, and there existed the exclusion of protection of signs as set out in article 156(1)(ii) of the IPL.

1. The right of protection shall not entitle the right holder to prohibit third parties from using, in the course of trade:
(ii) indications concerning, in particular, the features and characteristics of goods, the kind, quantity, quality, intended purpose, origin, the time of production or of expiration of usability period,

There is one thing I wanted to add. I asked the Appellate Court in Warsaw to send me the judgment via e-mail. My request was based on the Polish Act on access to public information. On 14 June 2010 I received an e-mail from the Court.

W związku z wnioskiem z dnia 11 czerwca 2010 r. o udostępnienie informacji publicznej uprzejmie informuję, że opłata za udostępnienie treści wyroku Sądu Apelacyjnego w Warszawie z dnia 16 kwietnia 2008 r. w sprawie o sygn. akt I ACa 1334/07 wraz z uzasadnieniem – zgodnie z Zarządzeniem Nr 130/09 Prezesa Sądu Apelacyjnego w Warszawie z dnia 31 lipca 2009 r. – wynosi 8 zł (1 zł za stronę) – w wersji elektronicznej. Opłatę można uiścić w kasie Sądu, znakami sądowymi lub przelewem bankowym na konto Sądu Apelacyjnego w Warszawie nr 93 1010 1010 0404 1322 3100 0000 z dopiskiem ” informacja publiczna Adm. 0137-119/10″.

I was informed that according to the Decree No 130/09 of the President of the Appellate Court in Warsaw of 31 July 2009, the fee for access to the judgment – is 8 PLN (1 PLN per page) – in the electronic version. I had no time to argue so I decided to pay. However, as you may remember from my post entitled “E-access to public information, case I C 19/10“, price-lists and flat-rate charges for making the public information available, may violate the provisions of the Polish Act of 6 September 2001 on access to public information.

See also “Polish case law on domain names“.

Personal interest, case I C 1272/09

March 19th, 2010, Tomasz Rychlicki

The District Court in Wrocław in its judgment of 18 March 2010 case file I C 1272/09 ruled that the advertising of one of the Polish banks that promoted payment cards in such a way that it used profile pictures of users of nasza-klasa.pl website infringed their personal rights. A user who logged into his or her profile was presented with an advertising that showed his or her face/image placed on credit card together with a slogan “your card for your personal account may look like this”. The Court held that users agreed to the provisions of the terms of service, but the permission to use their pictures concerned solely the purpose of social networking, not advertising. The Court ordered the owner of nasza-klasa.pl to pay the plaintiff 5000 PLN as a compensation. This judgment is not yet final.

Personal interest, case I A Ca 1202/09

March 3rd, 2010, Tomasz Rychlicki

Nasza-Klasa.pl website is a very popular Polish social networking service bringing together classmates. It provides its users with a possibility to contact and search for old friends. In 2008, an unknown person created an account for the name of Dariusz B., The fake profile included his personal data: name, place of residence, phone number, age and images. This account was set without the knowledge and the consent of Dariusz B. Many offensive comments were sent from this fake account to other users of the portal. These comments provoked negative emotions and responses from its recipients. Dariusz B. and his wife, tried to apologize to every person they met. Dariusz B. was also forced to change his phone number, and met with harsh comments from friends, and especially from the strangers. Maria B. – wife of Dariusz B. contacted Nasza-Klasa.pl by e-mails with the request to remove or to block the fake account. When it did not bring any results, they brought a lawsuit against Nasza-Klasa.pl.

Nasza-Klasa.pl was found responsible by both the District and the Apellate courts because it has not removed, or at least not immediately blocked the fake account, created in the name of Dariusz B., thereby making violations of his personal interests possible.

The Appellate Court in Wrocław in its judgment of 15 January 2010 case file I A Ca 1202/09 ruled that nature of the infringement performed by Nasza-Klasa.pl was to allow a third party to encroach on personal rights of Dariusz B., by not fulfilling its obligations under the Polish Act of 18 July 2002 on Providing Services by Electronic Means – PSEM – (in Polish: ustwa o świadczeniu usług droga elektroniczną), published in Journal of Laws (Dziennik Ustaw) No. 144, item. 1204 with subsequent amendments.

Article 14
1. A person who gives access to the contents of a network IT system to a customer, where the customer stores data, is not aware of the illegal features of the data or activity connected with the data and upon receiving an official notification or credible information about the illegal features of the data or activity connected with it, immediately bars access to the data, shall not be responsible for the data.

2. A Service provider who has received the official notification of an illegal character of the stored data that was supplied by the customer, and prevented the access to the data, shall not be liable to the customer for damages resulting from preventing access to such data.

3. A service provider who has received credible information of the illegal character of the stored data supplied by the customer and prevented access to the data, shall not be liable to the customer for the damage resulting from preventing access to such data, if it has immediately notified the customer of the intention to prevent access to data.

According to the Court, Nasza-Klasa.pl did not immediately block, and then delete the questioned fake account. Therefore, it forced Dariusz B. to bear a humiliating behavior caused by another person, which in consequence violated his serenity, good mood, sense of personal dignity, i.e. his personal interests. However, the Court did not agree with the argument that the standard of conduct, professionalism, requires the administrator to filter and delete statements that violate the law or may violate the law in an objective view, without a prior notice regarding such event. Putting such a requirement would be contrary to the provisions of Articles 14 and 15 in connection with Article 12 of the PSEM.

E-access to public information, case II SAB/ Wa 57/09

February 18th, 2010, Tomasz Rychlicki

In 2008, the Polish media reported a story on the Polish Post which allegedly tested a system that scans envelopes and parcels. There were rumours that information gathered by such scanning could be used by the Internal Security Agency (ABW). ABW denied, but the Inspector General for Personal Data Protection has decided to investigate how the collected data are processed during the scan. Roman P. has requested the GIODO to make available the results of the investigation. Since Roman P. filed his request by phone and then by e-mail, the GIODO informed that it will consider the request only after it receives personal data of Roman P.

The GIODO based its opinion on the provisions of Article 63 § 3 of the Administrative Proceedings Code – APC – (in Polish: Kodeks postępowania administracyjnego) of 14 June 1960, 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.

§ 1. Applications (requests, explanations, appeals, complaints) may be filed in writing or by telegram, telex, fax, email or by using the form available on the website of the competent public administration, allowing data entry into the communications system of the body, as well as verbally to the protocol.

§ 2 The application shall include at least an indication of the person from whom it comes, its address and it shall satisfy other requirements stipulated in the special regulations.

§ 3 The application submitted in writing or orally to the protocol shall be signed by the applicant, and also by an employee who made the protocol. When the application is filed by a person who can not or do not know how to make a signature, the application or a protocol is signed by other person authorized, by making a reference next to the signature.

The GIODO decided that the application filed by Roman P. shall indicate the person from whom it derives, its address and the scope of the request, otherwise, the request will not be examined.

Roman P. brought a complaint against this decisopn. The Voivodeship Administrative Court in Warsaw in its judgment case file II SAB/ Wa 57/09 ruled that the GIODO failed to act and ordered the Inspector General for Personal Data Protection to examine Roman P. request within 14 days because information he demanded, is deemed as the public information as defined in Article 5(2) of the Polish Act of 6 September 2001 on Access to Public Information – API – (in Polish: Ustawa o dostępie do informacji publicznej), published in Journal of Laws (Dziennik Ustaw) No. 112, item 1198, with subsequent amendments. The Court also ruled that arguments and findings to leave the application without further examination, because it was sent by e-mail, have no support in the APC.

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

Personal data protection, case I OSK 667/09

February 13th, 2010, Tomasz Rychlicki

On 15 January 2008, Tomasz W. filed with the General Inspector for Personal Data Protection (GIODO) a complaint concerning an unauthorized processing of personal data carried out by the Polish company Nasza Klasa Sp. z o.o. from Wroclaw, the owner of nasza-klasa.pl website. He informed the GIODO, that this very popular Polish website on classmates, hosts a photo featuring his image together with a list of names of other photographed people attached to it. Tomasz W. has repeatedly appealed to the website administrators with the request to remove his name from the list. However, he received no response from Nasza Klasa company.

As a result of the investigation, the GIODO found that on 31 December 2007, a registered user of nasza-klasa.pl posted classmates’ photo featuring students of a primary school. On the same day, another registered user, placed the names of people who were portrayed at the photograph – including the name and surname of Tomasz W. On 2, 9 and 14 January 2008, Tomasz W. requested Nasza Klasa Sp. z o.o. the removal of his personal data.

In a decision of 27 May 2008, case file DOLiS/DEC-314/08/13239, the GIODO, relying on the provisions of the Polish Act of 29 August 1997 on the Protection of Personal Data – PPD – (in Polish: Ustawa o ochronie danych osobowych), published in Journal of Laws (Dziennik Ustaw) of 29 October 1997, No. 133, item 883, unified text published in Journal of Laws (Dziennik Ustaw) of 6 July 2002, No. 101, item 926, with subsequent amendments, ruled that information on the applicant’s full name, school and class to which he attended, together with his image, are personal data and the data collector is Nasza Klasa Sp. z o.o.

However, the GIODO also ruled that it should be borne in mind that according to the provision of the Polish Act of 18 July 2002 on Providing Services by Electronic Means – PSEM – (in Polish: ustwa o świadczeniu usług droga elektroniczną), published in Journal of Laws (Dziennik Ustaw) No. 144, item. 1204 with subsequent amendments, Nasza Klasa sp. z o.o. provides electronic services for registered users of the portal website, consisting of the storage of data of these users in the computer system. This activity is the condition to legalize the processing of personal data in accordance with article 23(1) pt. 5 of the PPD. In addition, the GIODO found that in this case the applicant’s rights have not been violated, because the access to its data was limited to a group of people registered on nasza-klasa.pl website.

Tomasz W. asked the GIODO for the retrial. He pointed out that the reasons for the decision have many contradictions, inconsistencies and is ambiguous. He accused the GIODO of laconic and cursory treatment of his case. He again emphasized that his personal data have been published on the nasza-klasa.pl website without his knowledge or consent, in violation of his civil rights and liberties.

After the rehearing of the case, the GIODO annulled the contested decision, and discontinued the proceedings. GIODO claimed that the re-examination of the case leads to the conclusion that the disputed information about Tomasy W. did not fall within the definition of personal data. The name and surname have been given under his old image from many years ago. Hence, the combination of photos from the past, with a name and surname of a person and a primary school, which such person attended did not allow for the identification of a person without excessive costs and time. The findings that the disputed information is not personal data within the meaning of the PPD caused the proceedings in the matter to be groundless and on the basis of article 105 § 1 of the APC, it had to be discontinued.

Tomasz W. lodged a complaint with the Viovodeship Administrative Court in Warsaw. The complainant asked for annulment of the decision of first and second instance. Tomasz W. claimed the violation of the substantive law, i.e. article 6(1) of the PPD, through its improper interpretation, of article 32(1) pt 7 and 8 of that Act, by recognizing that Tomasz W. is not entitled to request cessation of the processing of his data and the right to object, and a breach of article 7 of the APC by not explaining all the relvant facts. Tomasz W. disagreed with the statement of the GIODO that questioned information about his person is not personal data within the meaning of the PPD. He stated that any information about an identified or identifiable individual is personal data. Furthermore, he argued that the claim of the GIODO that the data are available only for specific people – registered users of the portal is not acceptable, because nasza-klasa.pl has no mechanisms for verification of users identity, which makes the questioned data easily accessible for everyone. Moreover, Tomasz W. also argued that a registered user who does not know him would have some difficulty in identifying his person but such obstacles would not happen to a person who knows about Tomasy W., and is looking for additional information.

The Voivodeship Administrative Court in its judgment of 3 March 2009 case file II SA/Wa 1495/08 ruled that the GIODO erred in its decisions, because information about the name and surname of Tomasz W., combined with information about the name and address of the primary school and the determination of the class to which he attended in 1978/79, even if it was thirty years ago, are personal data. According to the Court provisions of article 1 of the PPD introduced the principle of autonomy of human information, meaning the protection of information about human being. This provision is a kind of emanation of the general right guaranteed by the Polish Constitution in article 47, according to which “Everyone shall have the right to legal protection of his private and family life, of his honour and good reputation and to make decisions about his personal life”. This means that the protection of personal data is related to the protection of privacy rights. This follows from the wording of article 6 of the PPD, indicating that the personal data concern identified or identifiable natural or legal person and that the identifiable is a person is one whose identity can be determined. From wording of that provisions the VAC concluded that personal data are data that identify a person’s identity. The VAC also relied on the content of recital 12 of the Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data, which emphasized the protection of all data relating to a person, and therefore also information about someones past.

(12) Whereas the protection principles must apply to all processing of personal data by any person whose activities are governed by Community law; whereas there should be excluded the processing of data carried out by a natural person in the exercise of activities which are exclusively personal or domestic, such as correspondence and the holding of records of addresses

However, in recital 26 of the abovementioned Directive states that data protection rules must apply to any information concerning an identified or identifiable person. In order to determine whether a person is identifiable, all the means which can be used by the controller or any other person to identify a person, should be taken into the account. The rules of data protection do not apply to data rendered anonymously in such a way that a subject of the data can not be identified. The identification of a given person concerns also past information about a specific human being, by which information one can learn about such person’s identity. Accordingly, the VAC held that European law means the protection of personal data as the protection of all the facts concerning the past of a particular person, which corresponds with the content of article 6(2) of the PDP. So this means that such data would also be protected. Referring to the foregoing facts of Tomasz W. case, the VAC ruled that that nasza-klasa.pl website published his image and name. In the opinion of the court these are the personal data which are protected by the PPD, because on their basis one is able to identify given person.

Nasza Klasa sp. z o.o. filed a cassation complaint with the Supreme Administrative Court (SAC) challenging in entirety the judgment of the VAC. The Supreme Administrative Court in a judgment of 18 November 2009, case file I OSK 667/09, rejected the complaint. The SAC held that the primary issue arising in this case was whether a classmates’ picture that was taken thirty years ago, at which Tomasz W. is potrayed, in the circumstances of the case, can be analyzed to determine his identity without necessarily involving excessive resources or time, and therefore, whether the data disclosed in the photo in question, constitutes personal data within the meaning of article 6 of the PPD, and whether it should be protected.

The concept of “personal data” on the Polish law includes any information concerning an individual if it is possible to define its identity and its identification. Personal data is a set of messages about a particular person such integrated that it allows for its individualization. It includes at least information necessary for identification (name, surname, place of residence), but this is not restricted, because it also include further information, strengthening the degree of identification. Such information will also include pictures of the individual, even if they were taken in the past, allowing to identify a person. In a situation where such a photograph is presented with a name and surname of the person portrayed, in a place accessible to an unlimited number of entities, it must be considered that it constitutes personal data subject to protection under the PPD. Mainly, the objective evaluation criteria decides for the qualification of given information as personal data, but it also should comprise of all information, including extralinguistic (context), to which third party may have or has an access. A different approach to the presented issues would maginalize the importance of the laws and it would not relate to its designated function.

Thus it should be considered that the image of Tomasz W. portrayed at the photograph that was taken 30 years ago, affixed with the class, his name and surname, and then published at nasz-klasa.pl website constitutes personal data within the meaning of article 6(2) of the PPD, and the cassation complaint was not justified. The SAC also noted that the consent for the processing of personal data cannot be in any way implied.

The SAC also stressed the fact the Internet as a source of information is increasing on a unknown scale and importance. It provides an access to specific information to a vast number of persons and allows for any of its processing within the meaning of the PPD. At the same time there are not yet developed appropriate mechanisms for the protection of individual rights when those rights have been violated as a result of the disclosure of information on the Internet. Then, it is a great role of law enforcement bodies, including the Inspector General for Personal Data Protection in creating practice to comply with applicable laws also on the Internet. It is an unacceptablr situation in which the entity seeks to remove its image from a particular website, and the administration fails to take action to ensure the protection of civil rights. The image is one of the very personal property rights and lack of consent to its publication, if it is not a public person, is a sufficient reason to believe that regulations of the PPD apply, if the conditions set in the article 6(2) of the PPD have been met. There is a legal sequel to this story. See “Personal data protection, case II SA/Wa 1212/10“.

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

Computer crime, case V K 1595/08

February 9th, 2010, Tomasz 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 the provisions of Articles 212 § 2 and 216 § 2 of the Criminal Code – CRC – (in Polish: Kodeks Karny) of 6 June 1997, published in Journal of Laws (Dziennik Ustaw) No 88, item 553, with subsequent amendments.

Article 212. § 1. Whoever imputes to another person, a group of persons, an institution or organisational unit not having the status of a legal person, such conduct, or characteristics that may discredit them in the face of public opinion or result in a loss of confidence necessary for a given position, occupation or type to activity
shall be subject to a fine, the penalty of restriction of liberty or the penalty of deprivation of liberty for up to one year.
§ 2. If the perpetrator commits the act specified in § 1 through the mass media
shall be subject to a fine, the penalty of restriction of liberty or the penalty of deprivation of liberty for up to 2 years.

Article 216
§ 1. Whoever insults another person in his presence, or though in his absence but in public, or with the intention that the insult shall reach such a person,
shall be subject to a fine or the penalty of restriction of liberty .
§ 2. Whoever insults another person using the mass media, shall be subject to a fine, the penalty of restriction of liberty or the penalty of deprivation of liberty for up to one year.

The court in Wroclaw was obliged ex officio under Article 35 § 1 of the Criminal Proceedings Code – CRPC – (in Polish: Kodeks Postępowania Karnego) of 6 June 1997, published Journal of Laws (Dziennik Ustaw) No 89, item 555, with subsequent amendments, to examine its jurisdiction and if found otherwise, to refer the case to the court with the proper one. The Court in Wrocław held that pursuant to Article 31 § 1 of the CRPC, the jurisdiction is where the offense was committed (the teritorial jurisdiction). Buzdygan claimed that the offense was commited in the article entitled “Trolls scour in the Net” which was published in the Polish magazine Przekrój of 11 November 2007, in addition the allegedly defamatory content was broadcasted by TV stations such as TVN, Polsat and TVP, in their news and in the Internet. Judge Jolanta Pol-Kulig had to decide on the location of the Internet.

[b]oth the editorial office of Przekrój and the abovementioned TV stations and the Internet are located in Warsaw, one should consider that the commitment of a crime to the detriment of the private prosecutor was performed in that place.

The Court in its order of 31 December 2008 case file V K 1595/08 referred the case to the Regional Court for Warszawa Śródmieście II Criminal Division. Interestingly, the Court in Wrocław did not consider that the alleged offense was not committed.

See also “Personal rights, case I ACa 949/09“.

Personal interest, case I ACa 949/09

February 9th, 2010, Tomasz Rychlicki

Since a couple of years he is a very controversial figure of the Polish Internet and he also has become the cause of two interesting judgments which I am going to report. Arnold Buzdygan appeared on different Polish newsgroups, where he wrotre, inter alia, on topics such as copyright, sexology, psychology and politics. His style of writing was, at least, very controversial. Due to the vulgarity of some of his statements (he claimed that such actions were performed by his followers who allegedly used his name), offers to make a bet and announcements of lawsuits and threats of beatings, a part of the Usenet community defined these behaviors as trolling and such informations was posted in the Polish Wikipedia’s entry devoted to Buzdygan’s persona. Arnold Buzdygan decided to sue.

In the petition for libel filed against the Association Wikimedia Poland and Agnieszka K., he demanded an order to remove the existing contents of the article Arnold Buzdygan in both English and Polish-language versions of Wikipedia, and to put the apology instead of these entries, and to block the possibility of future edition of the questioned article, He also requested the Court to order the Association Wikimedia Poland to pay him the compensation of moral injury and the costs of the process in the sum of 100000 PLN.

In the response to a petition, the Association of Wikimedia Poland requested the Court to dismiss the claim, pointing that such charges cannot be brought against it because of the lack of the so-called “passive legitimacy”. Wikimedia Poland stated that neither the Association itself, or persons acting on its behalf are not engaged in editing of the article on Arnold Buzdygan, Wikimedia Poland argued that it is not a database administrator of Wikipedia or administrator of the servers on which the information is stored, so it would not be possible to remove or permanent blocking of such entries.

The District Court in Wrocław dismissed the suit in judgment of 8 June 2009, case file I C 802/07. Buzdygan appealed, and his petition was dismissed by the Appellate Court in Wrocław in a judgment of 17 November 2009, case file I ACa 949/09, published in Orzecznictwo Apelacji Wrocławskiej, Biuletyn Sądu Apelacyjnego we Wrocławiu, No 1 (13), p. 5, Year MMX. The court ruled that the statements published in the disputed article and the mention of trolling do not infringe on Buzdygan’s personal rights. Descriptions of Buzdygan’s activity on different forums, though they may have a pejorative connotation, were the evaluation of the expression of views issued by Arnold Buzdygan, not the description of himself. The wording that was challenged by Buzdygan does not refer to his person, but it concerned the way of formulation of his speech in a public discussion, and the measure of negative evaluation did not exceed the permissible limit.

An active participant of online forums, being a well-known and recognizable in such community is, in this sense, a “public personality”. As a public person, participating in discussions, one agrees and must reckon with the fact that his or her opinions and statements will be subjected to criticism by other users, sometimes very radically and one has to demonstrate greater tolerance and even resistance to unfavourable and unflattering opinions, and even violent attacks. The boundaries of acceptable criticism are wider in fact, than in the case of persons not participating in such discussions. The evidence proceedings during the hearings has shown that Buzdygan was and is very active participant in online forums, and he is a known figure. By applying the test of the higher degree of tolerance for unflattering opinions, the Court found that the wording of the Wikipedia entry devoted to Arnold Buzdygan did not exceed the agreed and acceptable standard.

See also “Computer crime, case V K 1595/08“.

Internet domains, case I ACa 272/06

February 8th, 2010, Tomasz Rychlicki

The Appellate Court in Katowice in its judgment of 16 June 2006 case file I ACa 272/06 ruled that it is pointless to talk about the “ownership” of Internet domains, because the civil law sets the property rights in Article 140 of the Civil Code, which only refers to tangibles, and domains are not such things, and further, due to the closed list of property rights in intangibles (the so-called numerus clasus of IP rights – the principle that the system of estates allows only a limited number of property rights available in a legal system), there are no regulations in the Polish law, which suggests that the effect of registering Internet domain names is, to acquire by the subscriber, the right to use and dispose of the domain. The agreement between the subscriber and the Internet domain registrar is a contract to provide telecommunications services within the meaning of Article 1(1) of the Polish Act of 16 July 2000 on Telecommunications Law – TLA – (in Polish: Prawo telekomunikacyjne), published in Journal of Laws (Dziennik Ustaw) No 171, item 1800 with subsequent amendments. The subscriber may transfer his or her claims (contractual claims against the registrar) to another entity, if it comes with the assumption of debt from subscriber fees.

I realize that this differs significantly from the US law. Easpecially if you read Kremen v. Cohen, 335 F.3d 1035, (9th Cir. 2003).

The parties do not dispute that domain names are a kind of property. This proposition appears to be consistent with California’s broad definition of “property.” See Cal. Civ.Code §§ 654 & 655(property includes “all inanimate things which are capable of appropriation or of manual delivery”). The parties disagree, however, whether a domain name like sex.com is the kind of intangible property that can support a claim for conversion. At issue is whether such intangible property constitutes a sufficiently definite right and whether such intangible property must also be merged into a document or other writing.

Same opinions were issued in Harrods, Ltd. v. Sixty Internet Domain Names, 302 F.3d 214 (4th Cir. 2002), Caesars World, Inc. v. Caesars-Palace.Com, 112 F. Supp. 2d 502 (E.D. Va. 2000) or In re Larry Koenig & Assoc., 2004 WL 3244582 (Bankr. M.D. La. 2004). But there are also different judgments such as Dorer v. Arel, 60 F. Supp. 2d 558 (E.D. Va. 1999), Zurakov v. Register.com, Inc., 304 A.D.2d 176, 760 N.Y.S.2d 13 (1st Dep’t 2003), Network Solutions, Inc. v. Umbro International, Inc., 259 Va. 759, 529 S.E.2d 80 (2000) and the latest I know which is Palacio del Mar Homeowners Assn., Inc. v. McMahon, — Cal.Rptr.3d —, 2009 WL 1668294 (Cal. App. 4 Dist. June 16, 2009). The Court ruled that a domain name registration is not property, but merely supplies the intangible contractual right to use a unique domain name for a specified period of time. Does it sound familiar to you?

See also “Polish case law on domain names“.

Personal data protection, case I OSK 1079/10

February 5th, 2010, Tomasz Rychlicki

According to lawyers representing the singer Maryla Rodowicz, on the forum of one of the Polish portal websites appeared entries with the content which allegedly violated her personal rights (interests). The lawyers requested the owner to reveal IP addresses of users who posted these entries. The administrator of the portal website deleted the disputed entries but did not reveal any of the IP addresses. Lawyers filed a request to the Inspector General for Personal Data Protection (GIODO), who ordered the portal to disclose IPs on the grounds that these numbers are personal data. The owner of the portal again refused. The case went to the Voivodeship Administrative Court (VAC) in Warsaw, which in a judgment of 3 February 2010, case file II SA/Wa 1598/09 upheld the decision of the GIODO. The company who owns the portal may file a cassation to the Supreme Administrative Court (SAC). The VAC judgment provides the interpretation that IP address is a personal data, in accordance with the statutory definition included in article 6 of the Polish Act of 29 August 1997 on the Protection of Personal Data – PPD – (in Polish: Ustawa o ochronie danych osobowych), Journal of Laws (Dziennik Ustaw) of October 29, 1997, No. 133, item 883, unified text published in Journal of Laws (Dziennik Ustaw) of July 6, 2002, No. 101, item 926, with later amendments.

Article 6
1. Within the meaning of the Act personal data shall mean any information relating to an identified or identifiable natural person.
2. An identifiable person is the one who can be identified, directly or indirectly, in particular by reference to an identification number or to one or more factors specific to his/her physical, physiological, mental, economic, cultural or social identity.
3. A piece of information shall not be regarded as identifying where the identification requires an unreasonable amount of time, cost and manpower.

The VAC also noted that the IP address is personal data if it is permanently assigned to the specified device, and that device is used or operated by a specified entity. This dependence makes certain, in given situations, that there is the possibility of identifying such entity. The Court said that it is true that the IP address itself is not sufficient to identify a person who use it, but together with other information a person can be identified. Grupa o2, the owner of a portal website filed a cassation complaint.

The Supreme Administrative Court in its judgment of 19 May 2011 case file I OSK 1079/10 dismissed the complaint and decided that information on the date and contents of the posts that are correlated with IP addresses, allows for unambiguous determination of identity of persons who have violated someone’s personal interests.

There was another court’s decision with regard to the aforementioned case and the disclosure of IP addresses. See “Telecommunications law, case I OSK 1079/10“. The U.S. courts and judges have quite different views on this issue. Read for example Johnson v. Microsoft Corp., 2009 WL 1794400 (W.D. Wash. June 23, 2009).

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

E-signatures in Poland

January 29th, 2010, Tomasz Rychlicki

The current Polish legislation on e-signature includes the Act of 18 September 2001 on Electronic Signature – ESA – (in Polish: ustawa o podpisie elektronicznym), published in Journal of Laws (Dziennik Ustaw) of 15 November 2001, No 130, item 1450, with subsequent amendments. The provisions of Article 3 of the ESA introduced two types of e-signature: “electronic signature”, which means data in electronic form which, together with other data, either attached thereto or logically associated therewith, are capable of identifying the signatory and the so-called “secure electronic signature”, which means electronic signature which is uniquely assigned to the signatory, is made using secure signature-creation device and signature-creation data that the signatory can maintain under his sole control, is related to the data to which it has been attached in such a manner that any subsequent change of the data is recognizable.

According to article 5 of the ESA, the data in electronic form bearing a secure electronic signature verified by a valid qualified certificate shall be legally recognized as equivalent to documents bearing handwritten signatures. A secure electronic signature verified by a valid qualified certificate shall ensure the integrity of the data bearing the signature and unambiguous indication of the qualified certificate by assuring that any subsequent changes of the data and any subsequent changes of the indication of the certificate used to verify the signature are recognizable.

Recently, the Polish Ministry of Economy proposed amendments to the ESA. The draft provides new types of e-signatures that are consistent with the Directive 1999/93/EC of the European Parliament and of the Council of 13 December 1999 on a Community framework for electronic signature.

The draft provides 4 types of e-signature: normal, advanced, personal and certified. The normal one will be the same features as present “electronic signature” as defined in article 3 of the ASA and will primarily serve as a declaration of identity.

The advanced e-signature will have to meet the additional requirements for certification of the person using it. It will certify the data integrity and allow you to establish the identity of the signatory to both individuals and legal persons, such as when submitting electronic invoices.

The data in electronic form signed by a qualified (secure) electronic signature will have specific legal effects – the same as a handwritten signature for the data recorded on paper. Such data will be admissible as evidence in legal proceedings. The signature will be used to sign statements of knowledge and will.

E-promulgation of Polish law

January 5th, 2010, Tomasz Rychlicki

The Act of 10 September 2009 on Amending the Law on the Promulgation of Normative Acts and Some Other Legal Acts, published in Journal of Laws (Dziennik Ustaw) of 2009, No 190 item 1473, came into force on 1 January 2010. According to the amendments, the Journal of Laws and the Polish Monitor or normative acts and other legal acts contained in them, including judgments, are made available freely for inspection and to download in the form of an electronic document from the website of the Government Legislative Center. The Minister responsible for informatization will also determine, by a regulation, the technical requirements to be met by electronic documents addressed for the announcement, containing normative acts and other acts, including judgments, taking into account the need to preserve the unity of supplied electronic documents and their possible transformation for the issue of the official journal.

Computer crime, case II K 320/07

December 14th, 2009, Tomasz 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.

Patent law, case VI SA/Wa 2279/08

October 27th, 2009, Tomasz Rychlicki

The Voivodeship Administrative Court in its judgment of 27 May 2009 case file VI SA/Wa 2279/08 ruled that the Polish Patent Office is not an authority that mechanically approves patents granted by the EPO. The Court held that if the dispute between the applicant and the Polish Patent Office related to the nature of the invention, as is was in this case, by refusing to grant a patent, the Patent Office in principle cannot merely on its own conviction as to the subject of the patent application. The PPO should seek to gather sufficient evidence to support its position. Such evidence could include witness-expert testimony. The absence of a comprehensive hearing of evidence and basing the questioned decisions mostly on its own belief in the recognition, what is the subject of the patent application, and such a situation took place in this case, justified the infringement of Articles 7, 77 § 1 and Article 107 § 3 of the APC, as having a significant impact on the outcome of the case.

Article 7
Public administration bodies shall uphold the rule of law during proceedings and shall take all necessary steps to clarify the facts of a case and to resolve it, having regard to the public interest and the legitimate interests of members of the public.

(…)

Article 77.
§ 1. The public administration body is required to comprehensively collect and examine all evidential material.
§ 2. At each stage of proceedings a body can amend, supplement or withdraw rulings made regarding the examination of evidence.
§ 3. An body conducting proceedings as a result of having been required to do so by the body having jurisdiction to settle the case (Article 52) may, on an ex officio basis or on application by one of the parties, hear new witnesses or experts on circumstances that form the objects of such proceedings.
§ 4. Universally accepted facts and facts known to the body ex officio do not require proof. Parties to proceedings should be informed of facts that are known to the body.

(…)

Article 107.
§ 1. A decision should contain: the name of the public administration body, the date of issue, the name(s) of the party or parties, the legal authority referred to, a ruling, a factual and legal justification, an advisory notice as to whether and how an appeal may be brought and the signature, name and position of the person authorised to issue the decision. Any decision which may be challenged by a petition to the civil court or a complaint to the administrative court should contain an advisory notice that such a petition or complaint may be brought.
§ 2. Other regulations may contain other elements which a decision should contain.
§ 3. The factual justification of the decision should contain the facts that the body regards as proven, the evidence relied upon and the reasons for which other evidence has been treated as not authentic and without probative force. The legal justification should contain the legal authority for the decision with reference to the relevant law.
§ 4. If the decision fully reflects the demands of the party then there is no need to provide a justification for the decision, but this does not apply to decisions in contentious cases and decisions given on appeal.
§ 5. A body can also dispense with a justification of a decision in such cases if under current statutory regulations there is a possibility of dispensing with or limiting the justification because of the interests of State security or public order.

The Court ruled that the PPO should make a thorough analysis of the concept of “technical character of the invention” and should indicate why it interprets it very narrowly, taking in this respect the view of the EPO. The PPO should also consider whether the European patent has been granted for the same solution, and examine the merits of different assessment of the invention in Poland. During the re-hearing of the case the PPO will will take the position whether the applied solution has been sufficiently disclosed, and if so, only then will further examine its patentability, given that one of the elements of assessing the patentability of the invention is a technical solutions. Due to the lack of legal definition of a “solution of a technical nature” in assessing a technical nature of the present invention the PPO is obliged to indicate what in the opinion of the PPO is deemed as “technical solution”. The PPO will assess the technical nature of the claimed invention and will refer to the applicant’s arguments, if the interpretation of that concept made by the PPO would continue to differ on how this concept is understood to the applicant.

Database protection, case V CSK 150/07

October 2nd, 2009, Tomasz Rychlicki

The Supreme Court in its judgment of 24 august 2007 case V CSK 150/07 held that an agreement on the use of the database is acceptable under the rule of contractual freedom, and it is similar to a typical license agreements. The contract for the work belongs to a group of contracts assigning ownership of the material components supplied by the contractor. If the work is deemed as the computer system then the contract transfers to the conctractor any copies of copyright works and databases that are not works and gives him the right to use them as intended, although copyright as a property right is not transferred to the contractor.

Internet domains, case I ACz 364/08

October 1st, 2009, Tomasz Rychlicki

The Appellate Court in Białystok in its order of 6 May 2008, case file I ACz 364/08 ruled that, the registration and use of the Internet domain name which is the same as someone else already existing domain, may be regarded as an act of unfair competition. The definition is provided in the Article 3(1) of the Polish Act of 16 April 1993 on Combating Unfair Competition – CUC – (in Polish: ustawa o zwalczaniu nieuczciwej konkurencji), Journal of Laws (Dziennik Ustaw) No 47, item 211, with subsequent amendments.

Article 3
1. The act of unfair competition shall be the activity contrary to the law or good practices which threatens or infringes the interest of another entrepreneur or customer.

The court also noted that although the act of unfair competition takes place only when the arguing entrepreneurs can be regarded as competitors. However, there are not excluded situations where a website under a disputed domain name will be providing goods or services different from those associated with a given name on the non-virtual market. Also in such situation a person may request for the protection against violations of the rights to the domain name, especially when it is registered in order to block a domain by a competitor, if it identifies an inactive website or a webpage or a website which is not updated nor offering any goods. Registration of such domains leads to a substantial impediment to market access for other entrepreneurs, which is in violation of Article 15 of the CUC. Such actions, however, have also an economic overtone, and therefore they concern the economic rights. The Court held that a claim filed in order to establish that someone is entitled to Internet domain names, and that actions of such a person will not infringe on the right of protection for a trade mark, and are not deemed as acts of unfair competition, are claims ensuing from property rights

See also “Polish case law on domain names“.

E-access to public information, case I OSK 190/06

September 4th, 2009, Tomasz Rychlicki

On 6 June 2004, the editor in chief of one of the Polish magazines requested the Minister of Internal Affairs and Administration for access and disclosure of the list of entrepreneurs who have been authorized to carry out business activity in the detectives and investigation services. The spokesman of the Minister replied that the registry of companies to whom such permits and licenses have been granted, as a whole, constitutes a database within the meaning of Article 2(1) point 1 of the Polish of 27 July 2001 on Protection of Databases – APD – (in Polish: Ustawa o ochronie baz danych), published in Journal of Laws (Dziennik Ustaw) No. 128, item 1402 with subsequent amendments. The whole structure of the registry is subject to legal protection and the its individual availability must be understood as the possibility to receive information about a specific item of the database. There are no procedural obstacles that the interested parties may receive information or data about a particular entrepreneur to whom the permit has been issued. So, as a general rule, the access to information contained in the registry is open, it does not mean, however, that the entire database should be disclosed – as a legal structure. The magazine filed a complaint on failure to act. The case went through all instances.

The Supreme Administrative Court in its judgment of 14 March 2006 case file I OSK 190/06 dismissed it the cassation complaint filed by the editorial team of the magazine.

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

Copyright law, case I ACa 1145/06

August 2nd, 2009, Tomasz Rychlicki

The Appeallate Court in Warszawa in its judgment of 11 May 2007 case file I ACa 1145/06 held that creation of layout and graphic form of the portal, as well as its improvement and change over the use of such a web portal is in the definition of a copyrightable work as provided in 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.

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