Archive for: e-adverstising

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.

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.

Tax law, case I SA/Łd 657/12

August 2nd, 2012, Tomasz Rychlicki

The Voivodeship Administrative Court in Łódź in its judgment of 29 June 2012 case file I SA/Łd 657/12 held that the agreement that provides the website to use for advertisers is deemed as the unnamed contract and is similar in its provisions to a contract of tenancy as defined in the Article 693 of the Civil Code – CC – (in Polish: Kodeks Cywilny) of 23 April 1964, published in Journal of Laws (Dziennik Ustaw) No. 16, item 93, with subsequent amendments.

Article 693. § 1. By a contract of tenancy, the landlord shall assume the obligation to give a thing to the tenant for use and the collection of fruits for definite or indefinite time, and the tenant shall assume the obligation to pay to the landlord the rent agreed upon.

The Court decided that the income from advertising should be taxed like tenancy contracts or leases, which allows a taxpayer to choose a lump sum settlement on registered revenues.

Tax law, case II FSK 1548/10

April 2nd, 2012, Tomasz Rychlicki

The Supreme Administrative Court in its judgment of 9 March 2012 case file II FSK 1548/10 ruled that an agreement concluded between the advertiser company and the owners of websites is deemed as unnamed contracts, similar to tenancy contracts. The inclusion to the application of a third party code that allows for the inclusion of advertising on the website is in fact a violation of the integrity of the copyrighted work – the website. It is therefore the realm of personal (rather than property) rights of the copyright holders. Although these are inalienable rights, but according to the prior case-law, it is permitted to waive of the exercise of these rights by the creator to third parties, including entrepreneurs as it was decided by the Appellate Court in Warszawa in its judgment of 14 May 2007case file ACa 668/06 published in OSA 2008/12/39. The author or copyright owner can effectively commit to a specific person not to execute of personal rights, or even to allow for its exercise on his or her behalf, because then it comes to the exercise, and not to the renouncement of moral (personal) rights.

Civil law, case VI C 143/11

March 24th, 2012, Tomasz Rychlicki

The Polish company InternetQ Poland Sp. z o.o. from Warszawa has sent text messages (SMS) to an unspecified group of people suggesting that they won prize of 20.000 PLN in some competition. The only tricky requirement was to send an empty text message as a reply. One of the recipients sued the company in order to force it to pay the prize. He based his claims on the provisions of Articles 353 and 354 of the Civil Code – CC – (in Polish: Kodeks Cywilny) of 23 April 1964, published in Journal of Laws (Dziennik Ustaw) No. 16, item 93, with subsequent amendments

Article 353. § 1. An obligation shall consist in that the creditor may demand a performance from the debtor, and the debtor is obliged to provide the performance.
§ 2. The performance may consist in act or omission.

Article 3531. The parties to a contract may arrange the legal relationship as they deem proper on the condition that the contents or the purpose of that contract are not contrary to the nature of the relationship, with statutory law, and with the principles of community life.

Article 354. § 1. The debtor must discharge his obligation in accordance with its contents and in a manner complying with its socioeconomic purpose and the principles of community life, and if there are established customs in that respect, also in a manner complying with those customs.
§ 2. The creditor shall be obliged to co-operate in the discharge of the obligation in the same way.

The Regional Court in Warszawa for Warszawa-Śródmieście in its judgment of 3 November 2011 case file VI C 143/11 held that consumer’s claims are well founded and awarded on his behalf 60.000 PLN. InternetQ filed an appeal.

Personal data protection, case II SA/Wa 1009/11

December 28th, 2011, Tomasz Rychlicki

A Polish farmer who owns an agriculture tourism farm and is advertising his services and business on a personal website, has found negative comments about his services at one of the Internet forum websites. He asked the administrator of the forum to remove his personal data. Some posts have been removed, but the farmer has demanded the removal of all statements and comments, and the access to personal data of forum’s users. He requested the Inspector General for Personal Data Protection (GIODO) to order the forum administrator to remove all comments and to disclose all necessary personal data. The GIODO refused to issue such a decision and ruled that the farmer himself published such information as his name and address on his website in connection to the conducted economic activity. According to the GIODO, the processing of information on the farmer’s name on the Internet forum website, has its justification in Article 23(1)(v) 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.

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.

According to the GIODO, the purpose of the legitimate interests is based on providing a service that allows for posting on the internet forum. The dissatisfied farmer filed a complaint against this decision.

The Voivodeship Administrative Court in its judgment of 16 November 2011 case file II SA/Wa 1009/11 dismissed it and decided that personal data published on a website that advertises agritourism services, are closely related to his business activities, and therefore subject to much weaker protection. These services may be subject to different assessments of people using them, there may be also some negative comments. The Court noted that the farmer could file a civil suit for the infringement of his interests against persons who wrote such comments.

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 interest, case II CSK 431/10

February 21st, 2011, Tomasz Rychlicki

Polish pop-singer Dorota Rabczewska sued Polish rapper Mieszko Sibilski for the infringement of her personal interests. She demanded an apology and 20.000 PLN as compensation for the damage she suffered. Rabaczewska lost the case in the first instance. The Court of second instance ordered Sibilski to publish an apology for the infringement of her dignity in the form of an online ad that has to be placed for 7 days at Polish portal site Onet.pl. The calculations showed that such action would cost around 32.000.000 PLN. Sibilski lodged an cassation complaint.

The Supreme Court in its order of 2 February 2011 case file II CSK 431/10 held that the court cannot order an apology for the violation of dignity, if the plaintiff requested for the protection of other personal interests, in this case her reputation and right to privacy. Moreover, the Supreme Court ruled that the second instance court improperly ordered the form of publication of an apology because it did not take into account technical requirements and the costs associated with it. The Supreme Court reversed the judgment and sent the case back for reconsideration.

Advertising of pharmaceuticals, case VI SA/ Wa 1136/10

July 29th, 2010, Tomasz Rychlicki

This is the continuation of a story described in “Advertising of pharmaceuticals, case II GSK 461/09“. The Voivodeship Administrative Court in Warsaw in its judgment case file VI SA/ Wa 1136/10 canceled the decision of the Main Pharmaceutical Inspector (MPI) that ordered the Polish Federation for Women and Family Planning (in Polish: Federacja na rzecz Kobiet i Planowania Rodziny) to remove information about different contraceptions. Such information was published on the website operated by the PFWFP. Being bound by a legal interpretation issued by the Supreme Administrative Court, the VAC ruled that the mere use of the name of a pharmaceutical product does not prejudge that such message is advertising. One cannot automatically equate information on medicinal products with an incentive to use them.

See also “Polish regulations on pharmaceutical trade marks” and “Polish case law on advertising of pharmaceuticals“.

Tax law, case III SA/Wa 25/10

July 7th, 2010, Tomasz Rychlicki

The Voivodeship Administrative Court (VAC) in Warsaw in its judgment of 5 July 2010 case file III SA/Wa 25/10 confirmed the interpretation that contracts based on providing access to websites for displaying ads should be deemed as the lease of such a website. That’s the most favorable interpretation from the perspective of the website owner and the advertising company. The first can choose a lump sum and pay 8.5% tax regardless of income. The company is not required to act as a withholding agent, who is obliged to collect withholding income tax.

See also “Tax law, case I SA/Kr 60/10“.

Tax law, case I SA/Kr 60/10

April 7th, 2010, Tomasz Rychlicki

The Polish company which provides advertising services that are based on placing advertising banners on Internet websites requested the Minister of Finance to issue an individual interpretation of tax law. The company rents websites from individuals and companies for remuneration. Banner ads are placed on rented websites by using a computer software owned by the company. The owners of rented websites were required at the start of cooperation only to do a single interference/change in the code in order to make space on their websites for ads placed by the Company. This moment was treated as a commitment by the parties to the lease agreement and such a website was subject to use and benefits/usufruct. The owners of websites were not required to render to the Company (or its customers) any other additional steps. The company receives payments from its advertisers/customers according to the agreement, i.e. periodicaly for example monthly or once after the ad campaign ended.

The company asked whether income from remuneration for the lease obtained by individuals (private persons) who were not doing any business activity in this field, must be considered to sources mentioned in article 10(1) pt 6 of the Polish Act on Personal Income Tax – PITA – (in Polish: ustawa o podatku dochodowym od osób fizycznych) of 26 July 1991, Journal of Laws (Dziennik Ustaw) No. 80, item 350, with later amendments.

Article 10.
1. The sources of revenues shall include:
6) letting, subletting, lease, sublease and similar contracts, including also lease, sublease of special sectors of agricultural production and agricultural undertakings or parts thereof for non-agricultural purposes or for running special sectors of agricultural production, with the exception of assets used for commercial activities;

The company wanted to know whether it should be also acting as withholding agent, who is obliged to collect withholding income tax. The company argued that according to article 10(1) pt 6 and 44(1) pt 2 of the PITA it is not its duty. The Director of the Tax Chamber, acting under the authority of the Minister of Finance, held the position of the Company to be invalid. The Director and the Minister of Finance held that every time there was a service contract concluded between the company and the owners of websites and not the lease agreement, because the owner should be regarded as a person cooperating with the Company based on the fact that they have been required to comply with personal activities, i.e. one-time intervention in the code of a website, so that ads can appear on their website. Their revenues shall be defined as in article 10(1) pt 1 of the PITA.

Article 10.
1. The sources of revenues shall include:
1) service relationship, employment relationship, including cooperative employment relationship, farming or other agricultural production cooperative, homework, retirement or disability pension;

The company appealed. The Voivodeship Administrative Court (VAC) in Kraków in its judgment of 5 March 2010 case file I SA/Kr 60/10 held that a website is not either the tangible object/property or the right. It cannot therefore be subject to a lease within the meaning of the Polish Civil Code. However, according to the principle of contractual freedom, as the company correctly pointed out, it would be acceptable to conclude the so-called unnamed contract, which would be similar to the standard lease contract as provided by the regulations included in the Civil Code. The changes made in HTML code were just the technical operation.

See also “Tax law, case ILPB2/415-679/08-2/AJ

Advertising law, case III ZS 4/09

January 15th, 2010, Tomasz Rychlicki

In a resolution of February 2008, the Polish National Notarial Council allowed its members for establishing Internet websites of their notarial offices. However, the Council of the Chamber of Notaries in Warsaw in the resolution of June 2009 decided that the establishment by notaries of their individual websites or posting data on webpages other than the council’s one is prohibited advertising. The Council ordered the shutdown of such websites and notaries who would not follow the resolution were subject to disciplinary proceedings.

In the article entitled “Notariusze mogą mieć strony internetowe“, the Polish newspaper Rzeczpospolita reports that the Polish Minister of Justice who exercises the supervision over the notaries’ self-government challenged the resolution to the Supreme Court. The PMJ argued that the Act of 14 February 1991 Law on Notaries, Journal of Laws (Dziennik Ustaw) of 2002 No 42 item 369, with later changes, does not allow the councils of chambers to take such restricting resolutions and although the government has the right to set the rules for its profession, but it is executed by the National Notarial Council, and not by the council of the chamber in Warsaw, Gdańsk or in Poznań. The resolution took by the the Council of the Chamber of Notaries in Warsaw divides Polish notaries on the better who are allowed to run their websites and and the worse, which may not do it. During the court’s hearings the representatives of the Warsaw provided very interesting arguments, for instance, that the opeartion of a website in Lublin has other meaning than opearating such website in Warsaw. The council of the chamber supervises the observance by notaries of the solemnity and dignity of their profession and the Internet website is a prohibited form of advertising, which is contrary with the principles of the exercise profession.

The Supreme Court in a judgment of 14 January 2010, case file III ZS 4/09, annulled the contested decision of June 2009. The SC firmly stressed that the Law on Notaries has created only one, not many local governments, which is formed by the local chambers and the National Council, and they are not independent to each other. The resolutions of the National Council are addressed to all notaries, including Warsaw’s. The council of the chamber cannot independently determine what is a disciplinary offense, because it is included in the Code of Ethics.

Trade mark law, case I ACa 16/10

October 8th, 2009, Tomasz Rychlicki

The French company Marin’s International brought a case before the Court for the Community Trade Marks and Community Designs, located in Warsaw (in Polish: Sąd Okręgowy w Warszawie Wydział XXII Sąd Wspólnotowych Znaków Towarowych i Wzorów Przemysłowych). The issue concerned the use of CTMs Marin’s and Lama by the Polish company Display Flash Poland sp. z o.o., within its website in NOSCRIPT tag. The Court in its judgment of 25 September 2009 case file XXII GWzt 8/09, ruled that the use of someone else’s trademark in website’s metatags infringes trade mark rights of such person, and such behaviour may be also deemed as an unfair competition delict. This is way more interesting if one realizes that almost month ago Google has announced that it doesn’t use the “keywords” meta tag in web search ranking. Display Flash Poland filed an appeal complaint.

The Appellate Court in Warsaw in its judgment of 14 July 2010 case file I ACa 16/10 dismissed it. The Court held that using as a keyword a word identical or similar to registered trade marks on the Internet does constitute infringement of the right of protection provided that the said act was committed without the consent of the holder and, in addition to the foregoing, the average Internet user experiences difficulty in determining whether the goods or services designated or found on the basis of a keyword are in fact assigned to the trade mark proprietor or a company commercially affiliated to it.

Tax law, case ILPB2/415-679/08-2/AJ

May 21st, 2009, Tomasz Rychlicki

Polish citizen bought domain names under which she has established website where the company from United States placed some ads. The owner of the mentioned website receives payments from the US company via PayPal or bank account several times a year. She does not have any invoices or bills. She is not an entrepreneur nor she is providing any online advertising business. The Polish newspaper Rzeczpospolita published an article titled “Jaki PIT od wynajęcia internetowej witryny pod reklamy“, which loosely translates as “What tax for renting website for online advertising” with a question, how and where should such person pay taxes.

According to interpretations issued by the Tax Chamber in Poznań of 13 January 2009 (ILPB2/415-679/08-2/AJ) and the interpretation by the Tax Chamber in Bydgoszcz of 17 March 2008 (ITPB1/415-797/07/PS), the income which is derived from activities performed “in person” for the US company, should be taxed only in the Republic of Poland.