Archive for: ISP liability

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.

Personal interests, case I C 988/13

September 26th, 2014, Tomasz Rychlicki

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

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

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

Personal interest, case I CSK 542/13

September 17th, 2014, Tomasz Rychlicki

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

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

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

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

Copyright law, case I ACa 1663/13

August 19th, 2014, Tomasz Rychlicki

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

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

The Appeallate Court in Warsaw in its judgment of 7 May 2014 case file I ACa 1663/13 repealed the contested judgment and held that the politician is not liable for copyright infringement, because since the defendant was not the author of this audiovisual work (the clip), therefore he could not be found guilty for posting a link to such work. The Court also presented a very original conclusions apropos tangible and digital copy of the work. This issue arose in the discussion regarding the provision of the Polish Act on Authors Rights and Neighbouring Rights – ARNR – (in Polish: ustawa o prawie autorskim i prawach pokrewnych) of 4 February 1994, published in Journal of Laws (Dziennik Ustaw) No 24, item 83, consolidated text of 16 May 2006, Journal of Laws (Dziennik Ustaw) No 90, item 631, with subsequent amendments.

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

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

Personal interests, case I CSK 128/13

January 4th, 2014, Tomasz Rychlicki

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

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

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

The Appeallate Court in Warsaw in its judgment of 11 October 2012 case file VI A Ca 2/12 made a clear distinction between the services provided by Ringer Axel Springer. The first one was a news service of a daily newspaper made available for free in the electronic form under the domain name fakt.pl, and the second was a free service of the internet forum. The provisions of the Polish Act of 26 January 1984 on Press law – APL – (in Polish: ustawa Prawo prasowe), published in Journal of Laws (Dziennik Ustaw) No. 5, item 24, with subsequent amendments, should be applied to the first service, and the provisions of the PSEM to the second. The Court ruled that comments posted for free, by anonymous users of fakt.pl website under the article that was an online version of a paper edition, do not constitute press materials as defined in the Article 7(2)(i) of the APL. The lack of any influence from the editorial over anonymously published comments, not to mention any of their prior verification makes this kind of speech free of control and as such cannot be regarded as a press material. The Court disagreed with Mr Giertych that such comments should be treated as “letters sent to the editor” of a journal that is published electronically. The Supreme Court in its judgment of 28 September 2000 case file V KKN 171/98 ruled that letters to the editor are the press material if they were sent to the editor for publication, and the editor-in-chief is responsible for publication of press releases, however, the publication of the letter to the editor must be preceded by careful and accurate checking of the information contained in such a letter to the editor. The Court agreed that such comments could be deemed as letter to the editor according to the APL, but only, if they were published in the paper version of the magazine, therefore, the editor (editor-in-chief) or the publisher would have full control over the content of such comments/letters. Users of fakt.pl do not send their their opinions and comments to the editorial of fakt.pl for publication on a discussion forum that exists on that same website, but they decide themselves about such a publication. The editor-in-Chief cannot therefore be responsible for comments published by third parties, because he or she had no control over the content or the action. The Court also ruled that Mr Giertych drawn incorrect conclusions as to the Terms of Service of fakt.pl website, in which the editorial of fakt.pl allegedly reserved the right and at the same time undertook its control over the content posted on fakt.pl website, including comments, and the right to manage them, especially the right to decide which comment deserves publication and which does not. First, the Court found that Ringer Axel Springer has reserved only the right and not an obligation to manage of comments posted by users, secondly, this right was reserved in the TOS ​​not on behalf of the editorial of a journal that is published in electronic form under the domain name fakt.pl, but on behalf of the administrator of the IT system, thirdly, the reserved right applied not to decisions about publication of a particular comment on the website, but to decisions about its blocking, moderation or deletion. Therefore, the Court dismissed the appeal. Mr Giertych filed a cassation appeal.

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

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

Personal interests, case I C 327/11

August 30th, 2013, Tomasz Rychlicki

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

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

Personal data protection, case I OSK 1666/12

August 26th, 2013, Tomasz Rychlicki

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

1. The processing of data is permitted only if:
1) the data subject has given his/her consent, unless the processing consists in erasure of personal data,
2) processing is necessary for the purpose of exercise of rights and duties resulting from a legal provision,
3) processing is necessary for the performance of a contract to which the data subject is a party or in order to take steps at the request of the data subject prior to entering into a contract,
4) processing is necessary for the performance of tasks provided for by law and carried out in the public interest,
5) processing is necessary for the purpose of the legitimate interests pursued by the controllers or data recipients, provided that the processing does not violate the rights and freedoms of the data subject.

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

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

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

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

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

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

The provider is therefore obliged to provide information on all categories of data listed in Article 18(1-5) of the PSEM, to the State authorities for the purpose of the proceedings conducted by them. The Inspector General noted that the disclosed information should also be understood as such data. The GIODO said that the provision of Article 18(6) of the PSEM are constructed in general terms and do not indicate either the types of bodies that may request such information, or the types of proceedings: criminal, civil, administrative or enforcement. The Inspector General noted that the provision of Article 18(6) of the PSEM only requires the provider to disclose information to State bodies, and it should not be interpreted broadly as the legal norm that is prohibiting the disclosure of such information to other entities. The GIODO decided that if the legislature had the intention to limit the disclosure of the information referred to in Article 18(1-5) of the PSEM, only for the bodies referred to in Article18(6) of the Act, it would explicitly formulate this provision, for example, by using the phrase “only”, which is a legislative method of defining the closed circle of entities, as it was provided in other regulations, for instance in the Article 66g and Article 66j § 4 of the Polish Act of 17 June 1966 on Administrative Enforcement Proceedings, or in the Article 72(1) of the Polish Act 5 August 2010 on Protection of Classified Information and in Article 105(1) of the Polish Act of 29 August 1997 Banking Law. The Inspector General noted that the legislature did not use the phrase “only” in the provisions of Article 218 of the Criminal Proceedings Code – CRPC – (in Polish: Kodeks Postępowania Karnego) of 6 June 1997, Journal of Laws (Dziennik Ustaw) No 89, item 555, with subsequent amendments, in relation to an obligation to disclose, at the request contained in the order, to the court or the prosecutor any mail and packages and the data referred to in Article 180c and 180d of the Polish Act of 16 July 2000 on Telecommunications Law – TLA – (in Polish: Prawo telekomunikacyjne), published in Journal of Laws (Dziennik Ustaw) No 171, item 1800 with subsequent amendments.

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

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

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

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

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

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

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

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

Copyright law, case I A Cz 114/13

June 21st, 2013, Tomasz Rychlicki

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

The Appeallate Court in Białystok in its order of 7 February 2013 case file I A Cz 114/13 dismissed an appeal in this case. The Court noted that under Polish law there is no uniform procedure governing disclosure of personal data for the purposes of civil proceedings. The processing of personal data are governed primarily by the Polish Act of 29 August 1997 on the Protection of Personal Data – PPD – (in Polish: Ustawa o ochronie danych osobowych), unified text published in Journal of Laws (Dziennik Ustaw) of 6 July 2002, No. 101, item 926, with subsequent amendments, the Polish Act of 16 July 2000 on Telecommunications Law – TLA – (in Polish: Prawo telekomunikacyjne), published in Journal of Laws (Dziennik Ustaw) No 171, item 1800 with subsequent amendments and the Polish Act of 18 July 2002 on Providing Services by Electronic Means – PSEM – (in Polish: ustwa o świadczeniu usług droga elektroniczną), published in Journal of Laws (Dziennik Ustaw) No. 144, item. 1204 with subsequent amendments. These regulations guarantee the protection of personal data where their processing (including their disclosure) is always an exception to the rules for their protection. The provisions of Article 80 of the Polish Act of 4 February 1994 on Authors Rights and Neighbouring Rights – ARNR – (in Polish: ustawa o prawie autorskim i prawach pokrewnych), published in Journal of Laws (Dziennik Ustaw) No 24, item 83, consolidated text of 16 May 2006, Journal of Laws (Dziennik Ustaw) No 90, item 631 with subsequent amendments that were introduced to the system of protection of intellectual property rights as a result of the implementation of Directive 2004/48/EC, are solutions distinct and relatively independent of regulation included in the PPD, TLA and PSEM.

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

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

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

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

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

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

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

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

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

Personal interests, case IV CSK 270/12

April 19th, 2013, Tomasz Rychlicki

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

Criminal law, case II K 1331/10

March 20th, 2013, Tomasz Rychlicki

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

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

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.

Consumer protection, case XVII Amc 5817/11

August 26th, 2012, Tomasz Rychlicki

The Polish Court of Competition and Consumer Protection in its judgment of 31 May 2012 case file XVII Amc 5817/11 held that an entrepreneur cannot include in its terms of telecommunication services any regulations and provisions which would release it from the liability for any loss due to lack of customer access to the service provided. Activities that intend to misinformation, confusion, misconception or are directed to exploit ignorance or naivety of the customers and consumers, are contrary to good customs.

Personal interests, case I ACa 689/13

August 1st, 2012, Tomasz Rychlicki

FS File Solutions Ltd. is the owner of a popular hosting website chomikuj.pl that allows for hosting different files by using a simple web interface. The Polish Chamber of Books (PCB) is Poland’s publishing industry trade body that found many of its titles available on chomikuj.pl without the permission of copyright holders. The PCB issued negative press and TV statements regarding chomiku.pl policy and business model. The Company sued the PCB for the infringement of its personal interests. FS claimed that by calling it “pirate service” the PCB infringed on its the company name (firm).

The District Court in Warszawa I Civil Chamber in its judgment of 20 February 2013 case file I C 407/12 ruled that PCB did not infringed personal interests of FS. File Solutions filed an appeal.

The Appeallate Court in Warsaw in its judgment of 10 October 2013 case file I ACa 689/13 returned the case to the District Court.

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.

Personal data protection, case IX Nc 1850/11

April 14th, 2012, Tomasz Rychlicki

The Regional Court in Wrocław in its judgment of 2 February 2012 case file IX Nc 1850/11 held that that there was no reason to accept the view that electronic services providers are required to bear costs for rendering information on given data to the state authorities for the needs of legal proceedings carried on by them. Therefore, the court ruled that the Police has to pay to the company that operates social-networking site for gathering and processing requested data and information, according to the specifiaction that was received from the Police.

Personal interest, case I CSK 111/11

March 25th, 2012, Tomasz Rychlicki

Cezary Pazura sued Grupa o2, the owner and publisher of pudelek.pl website. Mr Pazura claimed that the company infringed his dignity, the inviolability of the home, privacy and publicity, by publishing 17 articles that concerned his relationship with Edyta Zajac, then fiancee, and now his wife. He argued that comments like “his mistress was no longer pretending, what she meant?”, “oldish playboy” were clear examples of the infringement. The District Court agreed with Mr Pazura, but Grupa o2 appealled, and the Appellate Court reversed the contested judgment and dismissed the suit. Mr Pazura filed a cassation complaint.

The Supreme Court in its judgment of 14 December 2011 case file I CSK 111/11 repealed the contested decision and returned it to the Appellate Court for further reconsideration. The Court held that the public status of a person does not automatically mean that his or her private life becomes also a “public life”. The Court clarified the understanding of the provision of Article 14(6) of the Polish Act of 26 January 1984 on Press law – APL – (in Polish: ustawa Prawo prasowe), published in Journal of Laws (Dziennik Ustaw) No. 5, item 24, with subsequent amendmets.

It is not allowed to publish information and data concerning the private sphere of life without the consent of the person concerned, unless it is connected directly with the public activity of such a person.

The Court ruled that in this case it was necessary to demonstrate the relationship between the public activity carried out by Mr Pazura, and published image, or private information that was published on pudelek.pl website. Therefore, it had to be a relationship between a person’s behavior in the public sphere. In addition, the disclosure of such information should serve to protect specific, socially legitimate interest. Therefore, the primary task of the courts was to determine whether in this case, Mr. Pazura’s consent was granted, or whether it was not needed at all.

Criminal law, case XI W 1497/11/P

March 15th, 2012, Tomasz Rychlicki

The publisher of histmag.org website requested its users to donate money via PayPal or similar services, in order to raise funds for the functioning of this history site. An anonymous user made ​​a complaint to the former Polish Ministry of Internal Affairs and Administration, now Ministry of Interior, claiming that this action constituted an illegal public money collection, which is prohibited according to the provisions of Article 56 § 1 of the Polish Code of Offences – PCO – (in Polish: Kodeks wykroczeń) of 20 May 1971, published in Journal of Laws (Dziennik Ustaw) of 1971 No 12, item 114, with subsequent amendments.

Whoever, without the required permit or in violation of its conditions, organizes, or holds a public collection of donations, shall be subject to a fine.

According to the Polish Act of 5 March 1933 on Public Collections, any public collections of donations in cash or in kind, for a pre-determined goal, requires prior authorization from the authority. This permit should be granted as an administrative decision. The Regional Court in Kraków in its warrant ruling found the publisher guilty. The publisher filed objections to this judgment.

The Regional Court for Kraków-Podgórze in Kraków, Wydział XI Karny in its judgment of 6 February 2012 case file XI W 1497/11/P acquitted the publisher of any charges. The court ruled that the public collection was conducted by receiving direct wire transfers or via PayPal. The provisions of the PCO and the definition of public collection included in the Act on Public Collections refers to public collections of cash or in kind, and are not applicable to electronic transfers.

Copyright law, case C-360/10

February 22nd, 2012, Tomasz Rychlicki

The Court of Justice of the EU in its judgment of 16 February 2012 Case C-360/10 Belgische Vereniging van Auteurs, Componisten en Uitgevers CVBA (SABAM) v Netlog NV ruled that 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), Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the in formation society, and Directive 2004/48/EC of the European Parliament and of the Council of 29 April 2004 on the enforcement of intellectual property rights, read together and construed in the light of the requirements stemming from the protection of the applicable fundamental rights, must be interpreted as precluding a national court from issuing an injunction against a hosting service provider which requires it to install a system for filtering:
– information which is stored on its servers by its service users;
– which applies indiscriminately to all of those users;
– as a preventative measure;
– exclusively at its expense; and
– for an unlimited period,
which is capable of identifying electronic files containing musical, cinematographic or audio-visual work in respect of which the applicant for the injunction claims to hold intellectual property rights, with a view to preventing those works from being made available to the public in breach of copyright.

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 interest, case II SA/Wa 364/11

October 13th, 2011, Tomasz Rychlicki

On January 2010, a couple of entries signed by the nick “arfulik” appeared on few Polish websites. The author wrote critically about the company Bavaria Consulting and a person who is a member of the board. It seemed that this unknown author conducted a competitive activity. Bavaria and Krystiana D. decided to sue for the infringement of personal interest. They needed personal data of a person who wrote questioned comments. Telekomunikacja Polska (TP), one of the largest ISPs, refused to provide such information, referring to the telecommunications confidentiality included in the Article 159 of the Polish Act of 16 July 2000 on Telecommunications Law – TLA – (in Polish: Prawo telekomunikacyjne), published in Journal of Laws (Dziennik Ustaw) No 171, item 1800 with subsequent amendments. Allegedly slandered filed a complaint to the Inspector General for Personal Data Protection (GIODO). The GIODO ordered the disclosure the personal data but he overturned this decision after TP filed a request for reconsideration. The GIODO decided that such information is subject to the telecommunications confidentiality and found no reason to disclose it. The offended persons lodged a complaint against this decision.

The Voivodeship Administrative Court in its judgment of 7 October 2011 case file II SA/Wa 364/11 dismissed it, and ruled that the intention of bringing action against the author of a forum post or comment is not a sufficient condition to disclose personal data. One has to file a suit for protection of personal interest. Only then, a court in order to avoid procedural deficiency, will summon the telecommunications operator to disclose personal data of the author of the questioned post.

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

Personal interests, case I CSK 743/10

October 8th, 2011, Tomasz Rychlicki

The Supreme Court in its judgment case file I CSK 743/10 ruled that if the newspaper, which lost a case for protection of personal interests and was ordered to publish an apology in the paper version, has also an online edition, then such a newspaper should also place a reference to apologies for this publication in its online archive.

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 I ACa 544/10

March 22nd, 2011, Tomasz Rychlicki

A critical article was published in a paper magazine entitled “Forum Akademickie”. It concerned one of the scientist from the University of Opole. Some offensive comments appeared also at magazine’s online forum. These entries were removed after the administrator received a notice from the researcher. There was another offensive entry published on 30 November 2008, but on the same day it has been removed by a site administrator. The researcher sued the editor for allowing for the publication of inaccurate and defamatory comments which in consequence infringed on his personal interests. The District Court in Lublin dismissed the claim as unjustified. The Court held that according to regulations included in Article 14 and 15 of the PSEM the defendants cannot be held responsible because they prevented the access to questioned data/entries. The plaintiff appealed.

The Appellate Court in Lublin in its judgment case file I ACa 544/10 held that defendants should be held liable because they provided a website that was used for discussion and exchange of different views and they posted also a warning message about the moderation or deletion of entries that will not fit for certain rules, although according to the Court they were not obliged to do so, but they also employed for this purpose a person whose duty included monitoring the entries and the removal of those that were posed not in accordance with law and social norms. Therefore, The Court ruled that defendants had knowledge of illegal entries. As a result, they were responsible for failing to remove them without delay and to do so only after many months, at the request of the plaintiff.

The Court ordered the defendants (the editor of the magazine and its publisher) to publish under the article the statement of apology and to pay jointly 5.000 PLN to charity. The judgement is not final.

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

February 4th, 2011, Tomasz Rychlicki

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

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

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

Personal interest, case XXIV C 760/09

October 26th, 2010, Tomasz Rychlicki

Kataryna, actually Katarzyna Sadło appeared in the Polish blogoshpehre shortly after the so-called Rywin affair. Since then Kataryna simultaneously publish her blogs on both blox and salon24.pl websites. She quickly became well-known person who comments on political life in Poland and received a large number of comments. Her identity quickly began to attract the interest of the mass-media. A few journalists were suspected for writing under this pseudonym. Kataryna gave interviews in press but did not disclose her identity.

In May 2009, the owner Salon24 website announced that Krzysztof Czuma, son of the Polish Minister of Justice Andrzej Czuma, sent a letter to Salon24 seeking the removal of lying and offensive blog entry of “a Kataryna”. Salon24 responded that the content of the blog posts does not affect the TOS of Salon24 and therefore it will not be removed. However, Kataryna announced that if the minister Czuma would like to bring the civil lawsuit against her, she will reveal her personal data.

Shortly after that, the Polish daily newspaper “Dziennik Polska-Europa-Świat” published information that it knows the identity of the blogger. Although the newspaper did not publish her name, but described it in a way that allowed for unambiguous identification. These were more than enough information to let Internauts to identify Katarzyna Sadło as Kataryna.

Kataryna decided to reveal (tweet) the contents of SMS, which has received from Sylwia Czubkowska, a journalist reporter from Dziennik, in which the she urged Kataryna to disclose her identity in the newspapers and warned that otherwise the information may be used by “Fakt” which is a tabloid owned by the same publisher – Axel Springer Poland. Kataryna sued Axel Springer, the publisher of “Dziennik” and the editors of this newspaper for violation of her right to privacy. The case was brought before the District Court in Warsaw case file XXIV C 760/09, however it was settled out of the court.

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“.

Personal interest, case I C 144/10

August 15th, 2010, Tomasz Rychlicki

A Polish citizen filed a civil suit against Nasza Klasa company – the owner and operator of social networking website. He seek an apology and a payment for the infringement of his personal interest by the fact that Nasza Klasa refused to provide the plaintiff with personal data of the person who set up a fake profile, and allowed for the creation of such a profile, which was finally closed after several unsuccessful requests.

The Inspector General for Personal Data Protection in its decision of 5 March 2010 ordered Nasza Klasa to provide the plaintiff with information (full name, address, e-mail and IP address of a computer) of the person who set up the profile of the YYY number on nasza-klasa.pl website, ordering at the same time, to fulfill the obligation referred to in Article 33(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.

Article 33
1. At the request of the data subject, within the period of 30 days, the controller shall be obliged to notify the data subject about his/her rights, and provide him/her with the information referred to in Article 32 paragraph 1 point 1-5a as regards his/her personal data, and in particular specify in an intelligible form:
1) the category of personal data contained in the file,
2) the means of data collection,
3) the purpose and the scope of data processing,
4) the recipients of the data and the scope of access they have been granted.

While executing this decision Nasza Klasa informed the plaintiff that the fictional profile was set up on behalf of a person of a first name “s d.”, the second name “w. I’m gay”, having e-mail address xyz@wp.pl. At the same time the company informed the plaintiff that it has no data with regard to IP addresses from which the profiles are set on its website, these data are not collected, and kept or archived. However, as it was also clear from the order of the District Court in Poznań of 16 June 2010 on an ongoing parallel criminal proceedings that Nasza Klasa provided the Police with the IP number, host and e-mail address of the person who has registered this fictitious profile containing personal information of the plaintiff.

The District Court in Wrocław in its judgment of 23 July 2010 case file I C 144/10 ruled that the way that Nasza Klasa has executed the decision bears hallmarks of malignancy, where the repetition of the contents of the fake profile certainly violated the plaintiff’s dignity. The Court noted also that the activity of Nasza Klasa which allows its users for the opening of online accounts, including fictitious accounts does not have the characteristics of illegality. Therefore, the plaintiff was not allowed to infer the responsibility of Nasza Klasa, because during the use of legal mechanisms, there was an infringement of his personal interests. In other words, the illegal nature has only the act of the direct infringer – an unknown person who registered fictional profile on nasza-klasa.pl website, that was containing personal information of the plaintiff, including his image, in the context of information insulting him.

The mere creation of a registration/login mechanism within defendant’ hosting services, without any specific negligence in the performance of duties imposed by law cannot justify the defendant’s liability for the infringement of personal rights of the plaintiff. According to the Court such reasoning would justify shifting the liability of the direct offender of personal right to the hosting service provider.

The Court held that Nasza Klasa committed a violation of personal rights by refusing to grant the plaintiff an access to personal data of the person who set up a fake profile infringing on his personal interest and being opprobrious to his identity, despite the fact that the plaintiff was entitled to obtain it, which was confirmed by final decision of the GIODO. The Court ruled that Nasza Klasa company as a professional hosting provider, which created and maintains a social networking website – in accordance with its TOS – should be aware of how the decision of Inspector General for Personal Data Protection should be executed. Moreover, Nasza-Klasa was aware of the circumstances of the plaintiff’s case, which lasted almost a year. At that time, the plaintiff has shown a determination to assert his rights, despite the fact that without a personal data of the offender, has repeatedly been put in a kind of a hopeless situation, not only by law enforcement, but also by Nasza-Klasa company. Since Nasza-Klasa did not have the name of the person who registered the fictitious profile with the data of the plaintiff, it shall inform the plaintiff and explain the problem and execute the decision of the GIODO with regard to available data (IP, e-mail address of the perpetrator). Nasza Klasa decided to file an appeal complaint. The Appelatte Court in Wrocław in its judgment of 18 Nobember 2010 case file I ACa 1129/10 reversed the previous judgment and dismissed the suit.

Telecommunications law, case I OSK 1079/10

August 3rd, 2010, Tomasz Rychlicki

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

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

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

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

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

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

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

Personal interest, case I C 1272/09

March 19th, 2010, Tomasz Rychlicki

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