Polish IP & IT law – copyright trademark computer internet telecomm

Archive for: e-services

Personal interests, case I C 988/13

September 26th, 2014, Tomasz Rychlicki

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

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

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

Trade mark law, case C-98/13

March 22nd, 2014, Tomasz Rychlicki

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

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

February 24th, 2014, Tomasz Rychlicki

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

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

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

January 9th, 2014, Tomasz Rychlicki

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

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

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

March 20th, 2013, Tomasz Rychlicki

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

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

Procedural law, case II SA/Go 43/13

March 13th, 2013, Tomasz Rychlicki

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

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

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

November 28th, 2012, Tomasz Rychlicki

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

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

October 19th, 2012, Tomasz Rychlicki

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

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

Criminal law, case IV K 875/07

September 19th, 2012, Tomasz Rychlicki

A person, who was working in a call center of one of the Polish telecommunication company, has used social service offered by that company and sent to subscribers of the telecommunications company a text message in which he made derogatory statements regarding another person. This person felt insulted and brought private charges based on the provisions of Article 212 § 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.

The Regional Court for Warszawa City IV Criminal Division in its judgment of 5 July 2012 case file IV K 875/07 sentenced the accused person to a fine. The Court held that the sent message humiliated this person in public and exposed to the loss of trust necessary for the conduct of his business. The case was heard on 33 hearings.

Personal data protection, case I OSK 1827/11

August 29th, 2012, Tomasz Rychlicki

The Inspector General for Personal Data Protection (GIODO) in its decision of 24 September 2010, no. DIS/DEC-1134/38146/10 ordered the Polish company Info Veriti Polska Sp. z o.o. Obsługa Serwisu Internetowego Sp.J., the publisher of online database of Polish entrepreneurs, to inform the individuals whose data that were publicly available in sources such as Court’s Monitor and Economic Monitor and which have been collected and preserved by the Company, according to the information requirement referred to in Article 25(1) 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, within 3 months from the date on which this decision becomes final.

1. In case where the data have not been obtained from the data subject, the controller is obliged to provide the data subject, immediately after the recording of his/her personal data, with the following information:
1) the address of its seat and its full name, and in case the controller is a natural person about the address of his/her residence and his/her full name,
2) the purpose and the scope of data collection, and in particular, about the data recipients or categories of recipients,
3) the source of data,
4) the existence of the data subject’s right of access to his/her data and the right to rectify these data,
5) the powers resulting from Article 32 paragraph 1 point 7 and 8.

Furthermore, the GIODO ordered the Company to register the collection of personal data of customers (owners of e-mail addresses) within 30 days from the date on which the decision becomes final, to allow users of infoveriti.pl website to freely consent to the processing of their personal data for marketing purposes within 30 days from the date on which this decision becomes final, to create documentation establishing security policy and the intruction for management of IT system that used to process personal data, within 30 days from the date on which this decision becomes final, to grant the authorization to the processing of personal data to persons who are allowed to process personal data within 14 days from the date on which this decision becomes final, and to create a record of persons authorized to process personal data within 14 days from the date on which this decision becomes final. Info Veriti argued that the provisions of Article 25(1) of the PPO should not apply in its case because the provision of other law provides and allows for personal data collection without the need to notify the data subject. Such allowance happens in the case of laws that introduced a formal disclosure of public registers, that include records containing personal information. The formal disclosure of a registry means the right of everyone to access data in the register, without the need to show the legal or factual interest. Due to the widespread legitimacy in terms of access to recorded data, a person obtaining information from the register is not in any way identified during data acquisition. The Laws relating to public records and registers, also do not require explicit registration of the collected data, and there is no knowledge of the registration body of when and to whom the data were disclosed. Moreover, some registration authorities, on the basis of generally formulated principles of transparency, put the data from public records for public networks such as the Internet, which makes impossible to control access of who accessed such register. The GIODO noted that the PPD does not prohibit the creation of separate collections based on data from sources generally available, however, it does not mean that such collections are not subject to the provisions of the PPD. The Company receives data from the National Court Register in order to create a separate database, which uses for its own commercial purposes. In this way, Info Veriti Polska becomes the administrator of the collected data, therefore, as the controller, it is obliged to information requirements. The right of individuals to keep information regarding their situation and status in private, is constitutionally guaranteed, and may be restricted exclusively by laws that have the statutory rank (only Acts). The Act on the National Court Register (KRS) is just such an act. In this case, the record of a natural person entered to the KRS is publicly available, because such Register was created to ensure the transparency of the economic market in Poland. The persons referred to in the Act on the National Court Register, are therefore required to provide their data for inclusion in the register and they must also reckon with the disclosure. This does not mean, however, that they must agree to the use of their data for purposes other than the generally speaking, transparency of economic activity. However, the data controller that processes personal data should provide due care in order to protect the interests of the persons whose data were collected and in particular to ensure that the data were collected for specified and legitimate purposes and are not further processed in a way incompatible with those purposes. The GIODO also noted that the list of situations that allow for waive the requirement to provide information, referred to in 25(1) of the PPD has changed as a result of amendments to the Act that were made in 2004. The provision of Article 25(2) pt 2 that allowed to waive the abovementioned obligation in a situation where the data provided for collection are generally available, was repealed. For these reasons, it was obvious that the intention of the legislature was to require data controllers who collect data “generally available” to completing the duties arising out of the provision of Article 25(1) of the PPD.

The company filed a complaint to the Voivodeship Administrative Court in Warsaw against the decisions issued by the GIODO. Info Veriti requested the Court to decide on the invalidity, or their repeal, in addition, the Company has applied for stay of the execution of the contested decisions and the order to return the costs of proceedings. Infor Veirit claimed that the processed data is very limited, restricted to surname, the national identification number (PESEL), date of birth and functions performed in the entities disclosed in the KRS. Therefore, it is impossible to provide information to persons whose data are processed, because some of them have historical character. These are people who in the past served specific functions. The data administrator is not able to provide such individuals with the required information. The data controller does not process data allowing for direct contact with a person (e.g. home address), and sending information to the address of the entity (e.g. companies created according to the provisions of the Polish Code of Commercial Companies), which in the past served a given function, can not be considered for the execution of the decision. In order to comply with the decision, Info Veriti would need to gather additional categories of data to make contact and send the required information. However, such an obligation should clearly expressed in the decision, which has not happened. The Company has no legal basis for the acquisition of new categories of personal data. The deadline of three months that was ordered by the GIODO is unrealistic in order to collect the required contact data in relation to all of the data are included in the database. The Company noted that its database contains all the data entered in the National Court Register. The purpose of data entered in the National Court Register is closely related to business transactions, and the widespread availability of the registry should not be regarded as interference in the private sphere of the individual whose data is disclosed in the registry. There isn’t therefore a need to notify such persons regarding the process of collecting their personal data, as instruments of public-law on protection of personal data are treated as protection of the right to privacy. The person who serves or served in the bodies of commercial companies must accept that the data will be in an open public record to which access will have anyone interested in business. The purpose of transparency and certainty of economic activity, according to the legislator, prevails over the protection of the name, surname, date of birth and the PESEL number of the persons who performed specific functions in the bodies that were entered into the KRS. Info Veriti also disagreed with the opinion of the GIODO, which opposes the existence and goals of the KRS and data collection of the Company, the latter being also created in order to provide the transparency of economic activity. Services provided by the Company are based on data from public records and explicitly relate to economic activity of specific individuals. Such commercial processing of data previously collected by public entities is allowed by EU law, such as Directive 2003/98/EC of the European Parliament and of the Council of 17 November 2003 on the re-use of public sector information. Information on such entities contributes to the establishment of the internal market and creates a system ensuring undisturbed competition in that market. It is also emphasized that public sector information is an important starting material for products and services related to digital content, and more opportunities to re-use this information should allow European companies to use their potential and contribute to economic growth and job creation. As “information services” of Info Veriti are based on data obtained from public records, they fit into the goals provided in the recitals of the Directive 2003/98/EC. According to Infor Veirit, the consequences of the position taken in the decisions of the GIODO, which implies obligation to provide information to any person that collects data from the National Court Register, if there are situations referred to in Article 2 (1-2) of the PPD, are also unacceptable.

Article 2
1. The Act shall determine the principles of personal data processing and the rights of natural persons whose personal data is or can be processed as a part of a data filing system.
2. The Act shall apply to the processing of personal data in:
1) files, indexes, books, lists and other registers,
2) computer systems, also in case where data are processed outside from a data filing system.

Such requirement would have to be commonly executed in the course of trade in relation to a number of activities related to the acquisition of data from the National Court Register. Given the widespread use of copies of the KRS, that are used for instance to identify the persons authorized to represent the company at the conclusion of the contract, such an interpretation would lead to economic paralysis, and certainly also to the irrational (excessive) financial costs, in the name of privacy protection, which in the present case does not occur.

The Voivodeship Administrative Court in its judgment of 2 June 2011 case file II SA/Wa 720/11 dismissed the complaint. The Court held that the Polish legislator afforded the citizen’s right to privacy in Articles 47, 49 and 51 of the Constitution. This also includes the protection of personal data and privacy against excessive interference by others. The provision of Article 47 of the Constitution sets out the principle of the protection of private life, Article 49 provides for the protection of the correspondence, while the provision of Article 51 states that no one shall be obliged, except under the Act to disclose information concerning his person, a public authority may not acquire, collect and share information on citizens other than those necessary in a democratic state ruled by law, everyone has the right of access to official documents and it datasets. Limitation of this right may be established by statute (act), and to anyone has the right to request the correction or deletion of information incorrect, incomplete, or collected in a manner inconsistent with the Act. These regulations are expanded in 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, which in turn refers to the solutions contained in 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. These instruments created a basic framework for data protection in the Republic of Poland. The PPD created statutory principle of the protection of personal data. In accordance with Article 1 of the PPD, any person has a right to have his/her personal data protected. The processing of personal data can be carried out in the public interest, the interest of the data subject, or the interest of any third party, within the scope and subject to the procedure provided for by the Act. The protection of personal data is a fundamental right of citizens in a democratic state of law. Protection of personal data is closely connected with the protection of private life and, therefore, it determines the freedom of the citizen. The right to protection of personal data, however, is not absolute and it is limited in the interests of the public or justified interests of others. However, since it is a citizen’s right, that determines a person’s sense of freedom, the exceptions allowing for the collection and use of personal data should be subject to strict interpretation. The legislature guided by the values of protection of constitutional rights cannot allow for a situation in which the law by the wider interpretation of the provisions relating to the processing of personal data, is violated. The provisions of the Act on the National Court Register lay down the rules of registration and the rules of disclosure of data. Such data are available electronically by the Central Information of the KRS or by viewing the register files in the appropriate departments of the Polish courts. These data are made available to any interested person, for the purposes of certainty of economic activity. The persons who undertakes an activity that is to be entered into the KRS, knows that the data is maintained by the State in the registry and data will be used only on the basis of the provisions relating to the functioning of the registry. Meanwhile, Info Veriti collects personal data and information disclosed in the register, such as surname, the PESEL number into its own database, in which data are processed. Data and information from the KRS are not intended for this purpose, and the people who share their personal information do not accept the fact that their personal data had been placed in another private database. When entrepreneurs decide to place their data into the KRS, they also have confidence that such data will be disclosed and used only in a manner permitted by the Act on the National Court Register. The legislature cannot allow for the situation that the protection of personal data contained in the KRS will not be limited to entities that wish to use the data for other purposes, and in a different way than permitted by the Act on the National Court Register. At this time, it would lead to a situation in which data from KRS could be used in an unrestricted way, against the will of the people entered into the register, for instance, in order to create a database for the marketing campaign. The court did not agree with the argument that the contested decision is contrary to the provisions of Directive 2003/98/EC. According to the court, the Directive does not apply directly to the Polish law, as EU directives are implemented into the law of a Member State and only then enter into force in the legal system. This Directive is not implemented to the Polish law, and Poland still works on the implementation. The court held that the contested decision is enforceable. Info Veriti builds its own database and has data that allow the Company to perform the information requirement to those who are in the database. It is possible because there are surnames and PESEL numbers of individuals, and businesses headquarters, where they perform given functions. Moreover, Info Veriti may use the services of the Central Bureau of Domiciliary. The fact that it is a big organizational task and it involves a large number of people does not mean that it is not feasible. By building a large database the Company had to be aware that in relation to the number of people it will have specific obligations according to the provisions of the PPD. Info Veriti filed a requested to stay the execution of the decisions.

The Supreme Administrative Court in its order of 30 September 2011 case file I OSK 1827/11 decided to stay the execution of both decisions.

Personal interest, case C-161/10

July 23rd, 2012, Tomasz Rychlicki

The Court of Justice of the EU in its judgment of 25 October 2011 joined Cases C‑509/09 and C‑161/10 eDate Advertising GmbH v X and Olivier Martinez, Robert Martinez v MGN Limited ruled that Article 5(3) of Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters must be interpreted as meaning that, in the event of an alleged infringement of personality rights by means of content placed online on an internet website, the person who considers that his rights have been infringed has the option of bringing an action for liability, in respect of all the damage caused, either before the courts of the Member State in which the publisher of that content is established or before the courts of the Member State in which the centre of his interests is based. That person may also, instead of an action for liability in respect of all the damage caused, bring his action before the courts of each Member State in the territory of which content placed online is or has been accessible. Those courts have jurisdiction only in respect of the damage caused in the territory of the Member State of the court seised.

The Court also ruled that Article 3 of 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 not requiring transposition in the form of a specific conflict-of-laws rule. Nevertheless, in relation to the coordinated field, Member States must ensure that, subject to the derogations authorised in accordance with the conditions set out in Article 3(4) of Directive 2000/31, the provider of an electronic commerce service is not made subject to stricter requirements than those provided for by the substantive law applicable in the Member State in which that service provider is established.

E-proceedings law, case III CZP 9/12

May 30th, 2012, Tomasz Rychlicki

The District Court in Toruń requested the Polish Supreme Court to answer the question whether a party of civil proceedings is allowed to file an appeal in form of electronic document. If the answer would be “yes”, the Court also wanted to know whether the deadline for lodging an appeal is confirmed by the date on which the letter was received by the device receiving the court’s e-mails. The District Court additionally enquired, whether such letters can be signed by electronic signature as defined in 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 Supreme Court in its judgment of 23 May 2012 case file III CZP 9/12 held that filing an appeal by e-mail is acceptable only, if a specific provision allows for such action. Currently, this option is very limited in the Polish law. The printed version of an appeal filed by electronic means may be treated as effective, if it will be signed by the party at the request received from the Court, and the date for submission of such a letter to the court is then the date the printing was done.

Access to public information, case XVI K 112/11

May 18th, 2012, Tomasz Rychlicki

Grzegorz Pluciński, the CEO of the Polish company Mainframe, filed a private accusation against Andrzej Machnacz who was the Director of the Centre of Information of the Ministry of the Interior and Administration in 2008-2010. It is probably the first case based on the provisions of Article 23 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.

Article 23. Whoever, contrary to the obligation weighing on him, shall not make the public information available, is subject to fine, penalty of restricted liberty or penalty of deprivation of liberty for up to one year.

Mr Pluciński argued that the Director was obliged to disclose a contract between the Centre and IBM. The sum of the contract was below 38.000 PLN which allowed for its conclusion without meeting the conditions of the Polish Act on Public Procurement. During the trail before the Regional Court for Warszawa Mokotów, the Director argued that the request for disclosure of public information that was filed by Mainframe was worded too broadly and did not relate to this contract. Mr Machnacz also argued that he did not take the refusal decsion, and only accepted suggestions of his employees, and after consultation with outside law firm. However, only two signatures were available under this decision. According to the provisions of Article 16(2) of the API, the justification of the decision on the refusal of making the information available should also include the names, surnames, and these persons’ functions, who took decision under the procedure on making the information available and marking the entities, in relation to whose goods defined in Article 5, it. 2, the decision on the refusal to make information available was issued. The trial has been postponed until June 2012.

Access to public information, case I OSK 2265/11

May 11th, 2012, Tomasz Rychlicki

A Polish company requested the Ministry of the Interior and Administration (MIA), and Director of the Centre of Information of MIA, to disclose all legal opinions prepared by the Polish Information Processing Society that concerned IT systems created by the Ministry. The Director provided all the requested documents, however the Ministry only asked the Company to clarify the request in the letter sent on October 2009. The Company filed a complaint for failure to act, claiming administrative inaction in its case. The Ministry also argued that the requested information cannot be disclosed because such expert opinions are copyrighted materials, and as such, are not deemed as public information.

The Voivodeship Administrative Court in Warsaw in its judgment of 4 February 2010 case file II SAB/Wa 155/09 agreed with the Company and ordered the MIA to disclose requested information. The Court ruled that such expertises are public information, so they should be disclosed, unless they contain secret information protected by law. The Minister of MIA filed a cassation complaint. The Supreme Administrative Court in its judgment of 3 August 2010 case file I OSK 757/10 repealed the contested judgment and returned it to the VAC for further reconsideration. However, the SAC only discussed and held that the VAC did not examine whether there was administrative inaction of the MIA. The Court did not examine the allegation that there was a breach of regulations 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 Voivodeship Administrative Court in Warsaw in its judgment of 8 September 2011 case file II SAB/Wa 174/11 was bound by the interpretation of the SAC, and decided that there was administrative inaction. The Minister of the Interior and Administration, once again filed a cassation complaint.

The Supreme Administrative Court in its judgment of 7 March 2012 case file I OSK 2265/11 dismissed it. The SAC held that if the Minister found that it had the requested information, while it also concluded that there are obstacles to the disclose because of the circumstances set out in Article 5 of the API, or other provisions of specific laws, it was obliged to initiate ex officio proceedings on the refusal to disclose information. The refusal should be issued as an administrative decision only. The lack of such a decision was deemed as administrative inaction, subject to a complaint. The letter sent by the Minister on October 2009 was clearly not an administrative decision. The SAC reminded that the administrative decision should obligatory contain: the name of public authority, date, identity of the party or parties, the legal basis on which the decision was issued, the conclusion and findings, factual and legal grounds, instruction, whether and how to file an appeal against the decision, the signature with the name, surname and position of the person authorized to issue a given decision. Although the letter was signed and affixed with the seal by the Deputy Director of Administration and Finance Office of the MIA, is was not mentioned that the Director acted under the authority of the Ministry. The letter did not contain a ruling on the request of the Company, but on the contrary – the Director explicitly stated that the request was not recognized in accordance with that Act on access to public information. The Letter had no form of a decision, it did not include the instruction, whether and how to file an appeal against it. The Court decided that this letter was purely information message sent on paper. The Polish legislature did not formulate any legal definition of “access to public information”, or the very concept of public information, both in the Polish act on access to public information or in any other legal act. However, Article 1 of the API ab initio provides that each information on public matters constitutes public information in the understanding of the Act and is subject to being made available on the basis of principles and under the provisions defined in this Act. According to legal commentators, a public matter is the activity of both public authorities, economic and professional self-government bodies that exercise tasks of official authority and the management of public property. A specific individual case of a person, especially of a private nature, is not deemed as public matters. The access to administrative files falls Within the catalog of public information. Public information is therefore the content of any document relating to public authority. These range from documents produced by government bodies, as well as those used in the execution of the tasks provided for by law, even if they do not come directly from the authorities. Such opinion was confirmed by the Supreme Administrative Court in its judgment of 30 October 2002 case file II SA 1956/02, the Voivodeship Administrative Court in Opole in its judgment of 17 January 2008 case file II SAB/Op 20/07, the Voivodeship Administrative Court in Warsaw in its judgmet of 16 July 2008 case file II SA/Wa 721/08, the Voivodeship Administrative Court in Warsaw in its judgmet of 26 June 2008 case file II SA/Wa 111/08. The criterion for determining the disclosure and availability of the documents under the API is not their authorship, but the opinion that they are used to carry out public duties, and were prepared at the request of public authorities, when at the same time, their content and does not violate the privacy of an individual or trade secrets of business. It is not about the disposal of copyright, but about access to the content of the document that was created on behalf of the public authority to carry out public duties. Such opinion was confirmed by the Supreme Administrative Court in its judgment of 15 July 2011 case file I OSK 667/11, by the Supreme Administrative Court in its judgment of 7 December 2010 case file I OSK 1774/10, by the Supreme Administrative Court in its judgment of 18 September 2008 case file I OSK 315/08, by the Supreme Administrative Court in its judgment of 9 February 2007 case file I OSK 517/06. Not all opinions or expertise, that were created by a public authority or on behalf of public authorities, are public information. The classification of legal opinion in documents that are available under the API is determined by the purpose for which it was prepared. A legal opinion prepared for the public authority on the merits of initiating future proceedings in a particular civil case does not constitute public information for the purposes of Article 1 of the API. It was confirmed by the Supreme Administrative Court in its judgment of 16 June 2009 case file I OSK 89/09. An expertise that specifically relate to a given legislative proposal for which the legislative process continues, are deemed as public information. These documents relate to the facts, of such, is the legislative proposal submitted to the competent authority in the legislative procedure. It was confirmed by the Supreme Administrative Court in its judgment of 27 January 2012 case file I OSK 2130/11. If a disclosure of public information threatens the common or individual interests, there is the possibility to restrict the access to such information by refusing its disclousure by an administrative decision that should be based on the provisions of Article 16 of the API. The expertise prepared by the Polish Information Processing Society for the Ministry, associated with the formation by that authority of systems, and the preparation of examinations for persons applying for a certificate of qualification for the controllers and communication systems, satisfy the conditions of public information, because they concern the implementation of tasks by the public authority. If the the expertise concerned computerization and informatization of the public sphere and involved the expenditure of public funds, therefore it is public information, because it refers to the public affairs, which is the issue of computer software/programs in the implementation of public tasks, and how they are used and implemented, the implementation and impact of these tasks and information on public property, including property of the State Treasury.

There was also a specific issue of the expropriation of copyright for public purpose. Article 1 of the Polish Act on Authors Rights and Neighbouring Rights provides that the subject of copyright should be any manifestation of creative activity of individual nature, established in any form, irrespective of its value, purpose or form of expression (work). Opinions and expertise made by qualified persons or entities meet the statutory definition. According to Article 4 of the ARNR, the copyright should not apply to legislative acts and their official drafts, official documents, materials, logos and symbols. Expertises commissioned by the Ministry, are official documents within the meaning of the Article 4(2) of the ARNR. They are used as a servant in decision-making process of the executive authority and are not the subject of copyright. The Polish Supreme Court and the Supreme Administrative Court agree that the official documents are materials that come from the office or other state institution or concerned official matters, or was the result of application of the official proceedings. As it was decided by the Supreme Court in its judgment of 26 September 2001 case file IV CKN 458/00, and by the Supreme Administrative Court in its judgment of 19 February 1997 case file I SA/Kr 1062/96. The effectiveness of social control and supervision over the information used on completion of assigned tasks of public authority correspond with such understanding of the relationship between the provisions of Article 1 of the API and Article of the ARNR. Such opinion was confirmed by the Supreme Administrative Court in its judgment of 27 January 2012 case file I OSK 2130/11. Hence, the definition of an official document, provided in Article 6(2) of the API does not provide a basis for restricting access to public information, defined in the Article 1(1) of the API, including the catalog of examples contained in Article 6(1) of the API.

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.

Telecommunication law, case XVII AmA 62/08

August 27th, 2011, Tomasz Rychlicki

The President of the Office of Competition and Consumer Protection in its decision of 20 December 2007 No. DOK-98/2007 decided that the market practice of Telekomunikacja Polska S.A. based on discriminatory lowering of IP traffic, by actions that lead to a reduction of the quality or the disabling of data transfer, is the practice of restricting competition. Telekomunikacja Polska appealed.

The Court of Competition and Consumer Protection in its judgment of 11 April 2011 case file XVII AmA 62/08 overturned the questioned decision in part. However, the Court did not argue with the President of the OCCP, that Telekomunikacja Polska was quilty of restricting competition.

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 data protection, case I OSK 1208/10

July 11th, 2011, Tomasz Rychlicki

Katarzyna S. had a website where she published information on breeding dogs. There was also another forum with such information. Grzegorz W. was a dog breeder and he noticed that his personal data and information on his breeding appeared on this websites. Some users posted also negative comments. Grzegorz W. requested the Inspector General for Personal Data Protection (GIODO) to issue an administrative decision ordering the removal of his personal data and all threads and posts connected with his name. He also requested the GIODO to check whether Katarzyna S. as a controller has registered the collection of personal data that was gathered during the operation of her website and the forum.

GIODO learned that the forum website was administered by another person who claimed that the questioned website had nothing to do with her professional activity, it was only a hobby. She never received any paid advertising, nor any funds from anyone. Moreover, she informed that the forum was removed from the net for several months. GIODO discontinued the proceedings. GIODO ruled that Katarzyna S. was not involved in the processing of personal data as a part of her business or professional activity. Jerzy W. filed a complaint against this decision.

The Voivodeship Administrative Court in its judgment of 14 April 2010 case file II SA/Wa 2130/09 ruled that dogs breeding may be directed to gain profits, because it can be associated with the sale of dogs. The Court decided that GIODO should reconsider the case. GIODO filed a cassation complaint.

The Supreme Administrative Court in its judgment of 28 June 2011 case file I OSK 1208/10 overturned the questioned judgment and sent the case back for reconsideration. The SAC ordered the VAC to examine whether the processing of personal data on the internet website had something to do with breeding activities.

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.

Tax law, case I SA/Po 486/10

February 11th, 2011, Tomasz Rychlicki

The Voivodeship Administrative Court in Poznań in its judgment of 22 October 2010 case file I SA/Po 486/10 held that a company that is required to send annual tax information about its employees, is also allowed to send to him or her a tax declaration in the form of electronic message (e-mail), under the condition that such e-mail is signed with the digital signature and the form of the tax declaration is preserved.

See also “E-signatures in Poland“.

Electronic Services, case I KZP 19/07

October 11th, 2007, Tomasz Rychlicki

The Supreme Court, the Penal Chamber, in its judgment of 29 August 2007 case file I KZP 19/07 answered an inquiry asking whether the word “sprzęt” ([a piece of] equipment, an appliance) covers only material technical devices composed of electronic elements. The court ruled that a “sprzęt” is a device made of electronic components that has been designed or adapted to give unauthorised access to protected services without prior authorisation from the service provider.

Charges brought against Pawel M. stated that from November 2, 2006 to November 3, 2006 in Z. in the Lubuskie Voivodeship in Poland, he used an illicit device for his own purposes and in order to obtain material benefits. He used the device to plug into a cable television service which subsequently enabled him to watch cable TV channels without paying the subscription fee. The device was a broken needle. The District Court (the court of first instance) ruled that the needle with the use of which the defendant plugged into the cable network is not an illicit device. The prosecutor appealled against the judgment and the issue was referred to a Regional Court in Z which concluded that this case needed an interpretation of the act itself and thus directed the issue to the Supreme Court.

At the beginning the Supreme Court had to interpret the term “sprzet” as used in Article 2(6) of the Act of 5 July 2002 on the Protection of Some Electronic Services Based on or Consisting of Conditional Access – PSESBCA – (in Polish: ustawa o ochronie niektórych uslug swiadczonych droga elektroniczna opartych lub polegajacych na dostepie warunkowym), published in Journal of Laws (Dziennik Ustaw) No. 126, item 1068 with subsequent amendments. This Act constituted a direct implementation of Directive 98/84 on the legal protection of services based on, or consisting of, conditional access. The Court cited M. Szymczak (ed.), Slownik jezyka polskiego (Dictionary of Polish) (Warsaw: 1999) vol.III, p.289 and almost identical definition in S. Dubisz (ed.), Uniwersalny slownik jezyka polskiego (Universal Dictionary of Polish), (Warsaw: 2003), Vol.IV, p.497.

The word “sprzęt” is understood as:
1. utility objects such as furniture, mechanical devices, containers, etc.
2. in a collective meaning: objects used in a certain domain of life such as building equipment, farm equipment, fire-fighting equipment, rescue equipment, automobile equipment, sanitary equipment, sports equipment, tourist equipment, etc.
3. sowing, cutting plants, digging, picking fruit, etc.

The Supreme Court concluded that when considering the legal aspect of the term, the most useful meaning of “sprzet” is the collective one, i.e. objects used in a certain domain of life. Under Article 1 of the Act on the protection of some electronic services based on or consisting of conditional access, such a domain of life includes using services that are rendered electronically against payment and on the basis of conditional access. In other words, such objects as are used in electronics, i.e. electronic devices.

In the functional interpretation of the term, the Supreme Court stressed the fact that the rationale behind the Act reads that the aim of the bill on the protection of some electronic services that are accessible conditionally and services of providing conditional access is to protect service providers against the deprivation of their rightful remuneration by individuals who introduce to trade exchange and use prohibited technical devices and other technical solutions the purpose of which is to circumvent the protections.

What is also important is that the court found that the legislator did not intend to penalise only the unauthorised use of electronic services that are based on conditional access. The court also took into consideration a commentary on the Act which reads that illicit devices do not include appliances or software that have not been designed especially for circumventing protections of protected services. Thus such a device may not be a TV, a regular computer or a telephone. An illicit device can only be an appliance or software that changes the functioning of protection measures of a service that protects that service from unauthorised use.

The above case study clearly indicates that the Supreme Court supported the legislator who had originally opposed delegalising objects (and components of such objects) that might be used also in a legitimate manner. Although resolutions passed by the Supreme Court have a more limited power than court precedents in countries that embrace the commonlaw legal system, this particular resolution helps an avid reader to predict a possible future judgment of that court in cases that would aim to penalise technologies that by nature are “neutral” (such a technology being for example peer-to-peer). On the other hand, however, it is most alarming that the Supreme Court supported the Polish legislator in an interpretation that refused to penalise actions that are related to unauthorised activities, when they are not performed for commercial purposes.

Categories: conditional access | e-access | e-law issues | e-services | Polish Supreme Court.