Archive for: e-evidences

Procedural law, case III CZP 102/15

March 25th, 2016, Tomasz Rychlicki

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

Personal interest, case I ACa 544/15

March 17th, 2016, Tomasz Rychlicki

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

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

Personal interest, case I ACa 142/15

February 17th, 2016, Tomasz Rychlicki

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

Copyright law, case VI ACz 856/13

July 8th, 2013, Tomasz Rychlicki

The Appeallate Court in Warsaw in its judgment of 13 June 2013 case file VI ACz 856/13 dismissed the complaint against the order to submit technologically advanced equipment and software that supports electronic transactions, into the case file. The case was initiated by a Company that suspected its former licensee of using computer software despite the expiry of the license. Copyright infringement has to be properly proved by a plaintiff. In many cases, it does not require any excessive effort, especially when infringing products are already placed on the market by the defendant. Difficulties arise, however, when infringing goods are under the exclusive possession of the alleged infringer. The claim to secure evidence is provided for in Article 80(1)(i) of the Polish Act of 4 February 1994 on Authors Rights and Neighbouring Rights – ARNR – (in Polish: ustawa o prawie autorskim i prawach pokrewnych), published in Journal of Laws (Dziennik Ustaw) No 24, item 83, consolidated text of 16 May 2006, Journal of Laws (Dziennik Ustaw) No 90, item 631 with subsequent amendments.

Article 80. 1.
The court competent to hear the cases of infringement of the author’s economic rights in the locality where the offender conducts its activity or where his economic is located, also prior to filing suit, shall consider, within no more than 3 days of filing, an application of a party with legal interest therein:
1) for securing evidence and securing claims related thereto;

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

Personal data protection, case I OZ 850/12

January 20th, 2013, Tomasz Rychlicki

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

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

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

Procedural law, case I CSK 138/08

January 17th, 2012, Tomasz Rychlicki

The Supreme Court in its judgment of 5 November 2008 case file I CSK 138/08 dismissed a cassation complaint in case related to tangible property, however the Court also decided on issues related to digital evidence. The Supreme Court found that the Appeallate Court erred in law by not admitting and refusing to assess evidence of computer printouts submitted to the case by the defendant. The Court did not agree with the opinion that prints do not meet the requirements of documents and thus can not be considered as evidence in the process. Even if unsigned computer printouts are not considered as a document within the meaning of provisions of Article 244 and 245 of the Civil Proceedings Code – CPC – (in Polish: Kodeks Postępowania Cywilnego) of 17 November 1964, published in Journal of Laws (Dziennik Ustaw) No 43, item 296, with subsequent amendments, it should be considered that the CPC does not contain an exhaustive list of evidence and it is acceptable to use any source of information about the facts relevant to the outcome of the case, if it is not contrary to law. Therefore, the Appeallate Court should allow to submit such evidence based on the provisions of Article 308 of the CPC. This provision refers to evidence other than as expressly set out in the CPC, and the same may also apply to computer printouts.

Personal interest, case IV CSK 665/10

November 7th, 2011, Tomasz Rychlicki

Writing under a pseudonym, Dariusz B. posted a comment on the website “Gazeta online Elbląg 24”. In his post Dariusz B. wrote to the Mayor of the Elbląg town, that he has photographs of people who sit in the city council, and he described the content of these pictures as a “sex scandal”. He noted that the Mayor’s spokesman ignored this case, so he wanted to know what should he do next with such photographs. Other anonymous Internet users posted comments under the post that has been written by Dariusz B. One of them has disclosed who is the author of the post, and also expressed a negative opinion about the post, by calling it a blackmail. This person also suggested that Dariusz B. has used the media for his own purposes in order to manipulate press journalists. The intentions of Dariusz B. and his honesty, were also undermined. The post of Dariusz B. was described as a blatant violation of the law for which he should bear criminal responsibility. “Gazeta online Elbląg 24” is a service available for free. It is operated by the Municipality of the Elblag town. The comment in which personal data of Dariusz B. was disclosed was written from a computer that had the IP address belonging to the organizational unit of the Elblag town. The unit operates wireless Wi-Fi, whose range includes several publicly accessible areas of the building and parking lot adjacent to it. It was not possible to identify the person who posted this comment. The Police, at the request of Dariusz B. commenced an investigation and failed to establish who was the author of the comment, even when the Municipality of Elblag has disclosed all data, including IP addresses. Dariusz B. sued the Municipality of Elbląg for the infringement of his personal interests. The District Court and the Appellate Court dismissed the suit. Dariusz B. filed a cassation complaint.

The Supreme Court in its judgment of 8 July 2011 case file IV CSK 665/10, published in electronic database LEX, under the no. 898708, held that critical comments of the content of post and the very fact of its posting, or disclosure of the name and surname of Dariusz B., was not a violation of his personal interest. However, it was a violation of personal interests (dignity and reputation) when such action has been called illegal activity, fraudulent and manipulative, a blackmail and provocation, which undoubtedly discredited Dariusz B. in public opinion, especially as a social activist, who was active at another online forum. Such statement, not supported by the facts, was unlawful. In the case of an infringement of one’s personal interests, the court may award pecuniary compensation to a person whose personal interests have been infringed, an approriate amount as pecuniary compensation for the wrong suffered or may, on his demand, adjudge an appropriate amount of money to be paid for a social purpose chosen by him, irrespective of other means necessary to remedy the effects of the infringement. Not only the person who directly caused the damage shall be liable, but also any person who has induced or helped another person to cause the damage, including those who consciously took benefit from a damage caused to another person. However, the Court ruled that there was no normal causal link between the actions of the Municipality of Elblag, and the damage suffered by Dariusz B., and such a link occurs only when the action is directed to accomplish the tortious activity.

By opearating a website “Gazeta online Elbląg 24” and a discussion forum, the Municipality of Elbląg was deemed as the Internet services provider. However, such ISPs, are responsible for the violation of personal rights performed by others only when they knew that the post violates these interests and they did not immediately prevent the access to the post. Therefore, the ISP is not obliged to control the content of posts written by users on a free discussion forum website. Taking into account the nature and purpose of services based on making available free of charge of a discussion website, and considering also that there were no general rules for the management of such services and systems, the Court held that there were no grounds to impose a general obligation on the ISP to provide tools to identify users of such a website. The Court ruled that the anonymity of persons using the publicly available online news website, is a generally accepted principle and essence of this type of service. It provides freedom of expression, which is the goal of such websites. Consequently, the Court held that the ISP that created and provides free access to the website with a discussion forum, has no obligation to ensure the ability to identify the users who maded posts on this website.

Personal data protection, case DOLiS/DEC-1013/10 concerning DOLiS-440-276/10

September 27th, 2010, Tomasz Rychlicki

The Inspector General for Personal Data Protection (GIODO) in its decision of 13 September 2010 case file DOLiS/DEC-1013/10 concerning DOLiS-440-276/10 ruled that according to the wording of Article 18(1) pt 2 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, in the event of the breach of provisions on personal data protection, the GIODO ex officio or at the request of the person concerned, by an administrative decision, shall order the restoration of the situation in accordance with the law and, in particular, to complete, update correct, disclose or not to disclose of personal data.

Article 18
1. In case of any breach of the provisions on personal data protection, the Inspector General ex officio or upon a motion of a person concerned, by means of an administrative decision, shall order to restore the proper legal state, and in particular:
1) to remedy the negligence,
2) to complete, update, correct, disclose, or not to disclose personal data,
3) to apply additional measures protecting the collected personal data,
4) to suspend the flow of personal data to a third country,
5) to safeguard the data or to transfer them to other subjects,
6) to erase the personal data.
2. The Inspector General’s decisions referred

Given the circumstances of the case, the GIODO considered that he is authorized – by the established rules – to order the Company to disclose to the applicant information about a person who, on in 2010, at 20:29 had registered on www.gowork.pl web portal using the nickname “anonymous”, i.e. information about IP address of a computer used to post the questioned entry.

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

Procedural law, case V CSK 269/09

April 11th, 2010, Tomasz Rychlicki

The Supreme Court in its judgment of 10 February 2010 case file V CSK 269/09 held that publishing information on the Internet about a specific fact does not mean that it is deemed as “widely known fact”, as it was defined in Article 228 § 1 of the Civil Proceedings Code – CPC (in Polish: Kodeks Postępowania Cywilnego) of 17 November 1964, published in Journal of Laws (Dziennik Ustaw) No. 43, item 296, with subsequent amendments.

Article 228
§ 1 Known facts do not require evidence.
§ 2 The same applies to the facts known to the court ex officio, however, the court should draw the attention of the parties to these facts during the hearings.

The Court did not agree with the opinion that data published on the official website of the Ministry of Agriculture is well known information or fact.

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“.