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.
Archive for: legal regulations on computer networks
Personal interests, case IV CSK 270/12
April 19th, 2013, Tomasz RychlickiE-access to public information, case II SAB/Wa 513/12
March 20th, 2013, Tomasz RychlickiA 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.
See also “Polish case law on e-access to public information“.
Personal interest, case XXIV C 1035/10
March 14th, 2013, Tomasz RychlickiThe “Nigdy Więcej” (Never Again) Association and the “Zielone Światło” (Green Light) Foundation organized a social action entitled “Nazism never again on Allegro”. It was a protest against a Polish auction website Allegro.pl which allowed to buy and sell different Nazi gadgets and memorabilia. The Foundation together with a writer, artist and social activist Jerzy Masłowski prepared an illustration with Allegro.pl logotype in which in which two L letters were changed and shaped as the SS symbol. This illustration was used on postcards that were handed out to different people during the street-action that happened near Metro Świętokrzyska in Warsaw on 21 March 2010.
On 20 April 2010, the Foundation received a cease and desist letter from QXL Poland – the owner of Allegro. The Company requested the removal from all public places of all publications, photographs, posters and billboards, and other materials that included the altered trade mark. QXL demanded destruction of all the above mentioned materials and asked the Foundation to publish an apology on its website, as well as in the pages of Gazeta Wyborcza newspaper. The Foundation refused to comply.
QXL Poland sued the “Zielone Światło” foundation and Jerzy Masłowski for the infringement of personal rights. During the trial, the Foundation argued that it has conducted correspondence with Allego with regard to products with fascist symbols or products referring to fascist ideology, that were offered at different auctions. However, it has not brought the intended effect, because Allegro.pl did not remove these items from its website. For this reason, the Foundation organized the street action. The Foundation argued that from 8 June 2010, the provisions of Article 256 of the Criminal Code were amended.
Art. 256.
§ 1. Whoever publicly promotes a fascist or other totalitarian system of state or incites hatred based on national, ethnic, race or religious differences or for reason of lack of any religious denomination
shall be subject to a fine, the penalty of restriction of liberty or the penalty of deprivation of liberty for up to 2 years.§ 22 The same punishment shall be imposed on anyone, who for the purpose of dissemination, produces, records or import, acquire, stores, possess, presents, transports or transfers a print, record or other item of the content specified in § 1 or being a carrier of the fascist, communist or other totalitarian symbolism..
§ 3 A crime is not committed by a perpetrator of a forbidden act specified in § 2, if he or she commits the said act in the course of artistic, educational, collectible or scientific activity.
The Foundation concluded that its action was a response to long-term omission of Allegro. The action was organized to draw the attention of relevant authorities and the public at auctions that poses a danger to others. It sought to protect an important public interest, and therefore was not unlawful. In addition, the Foundation argued that according to the legal doctrine the criticism aimed at improving the reality is not illegal, even if it is excessively expressive in description and in negative assessment, as well as it’s impolite way of expression and presentation of arguments, if it is justified by the importance of issues raised and the literary form that was used. Moreover, the scope of permissible criticism depends on the weight of social affairs, and in case of doubt, freedom of expression takes precedence, and in some cases even offensive criticism is acceptable. If the case requires so, the criticism might be very offensive, and it may even seek to destroy the enemy, for example, in the dispute against pedophilia or against the view that is glorifying Stalin. The Foundation argued also that a request for legal protection raised by Allegro cannot ban the Foundation and other individuals from expressing their critical opinions of the plaintiff’s conduct. Such behavior constitutes an abuse of the subjective right as decided by the Appeallate Court in Lódź in its judgment of 25 May 2006 case file I ACa 15/06, published in electronic database LEX, under the no. 512493.
On 9 November 20011, a lawyer representing the Foundation presented a legal opinion issued by Prof. Wojciech Sadurski. Prof. Sadurski wrote that there was no violation of personal interests. In the opinion of the author, the case brought by QXL Poland illustrates the conflict between two types of claims related to absolute rights protected by the law. The claims relating to freedom of expression, and intellectual property claims relating to the protection of trade marks owned by QXL Poland. Citing the case law of the Polish Constitutional Tribunal, prof. Sadurski argued that freedom of speech is superior to other constitutional rights and freedoms. He noted that limiting the right to freedom of expression by issuing a ban on speech, would violate the essence of the constitutional right to freedom of speech. Prof. Sadurski cited Smith v Wal-Mart Stores, 537 F.Supp.2d 1302 (ND GA 2008), however he pointed out that the Foundation does not conduct any commercial activity, and the risk of consumers’ confusions is clearly excluded. Please bear in mind that such opinions are treated by the Courts as private documents, not as the expert witness evidence/testimony. The case is pending and the next hearing is scheduled on 6 February 2012.
QXL Poland filed also a request for preliminary injunction. The District Court in Warsaw in its order of 20 January 2011 case file XXIV C 1035/10 dismissed it during a closed-door court session (in camera). However, the Appeallate Court in Warsaw in its decision of 5 May 2011 case file I ACz 671/11 decided to secure the claim of QXL. The Court prohibited the Foundation and Jerzy Masłowski from transmitting and disseminating on their websites of any publications or materials containing the questioned trade mark.
The District Court in Warsaw in its judgment of 13 March 2013 case file XXIV C 1035/10 ruled that the “Zielone Światło” (Green Light) Foundation infringed personal rights of Allegro, such as reputation and fame. The Court decided that the demonstrations against the sale of Nazi memorabilia and interference with the logo of the portal were too excessive and bore the risk of linking the portal with Nazi organizations. The judgment is not final.
Spam law, case II W 572/12
February 5th, 2013, Tomasz RychlickiThe Regional Court in Dzierżoniów in its judgment of 9 January 2013 case file II W 572/12 sentenced a Polish citizen for the fine in a sum of 300 Polish złoty for sending unsolicited e-mail to two persons. This case was based on the indictment afforded for in the Article 24 of the Polish Act of 18 July 2002 on Providing Services by Electronic Means – PSEM – (in Polish: ustwa o świadczeniu usług droga elektroniczną), published in Journal of Laws (Dziennik Ustaw) No. 144, item. 1204 with subsequent amendments.. Anyone, who transmits by electronic communications means unsolicited commercial information, should be liable to fine. The prosecution of this offence is conducted on the request of the harmed party. Recent amendments to the Polish Telecommunication law introduced also new anti-spam provisions to the PSEM. As of 22 January 2013, sending unsolicited commercial information addressed to the specified recipient, who is a natural person, by electronic communications means, in particular electronic mail is prohibited. These amendments made the ban on sending unsolicited commercial information on whether the spam recipient is a natural person. Previous provisions of the PSEM did not provide such prerequisite.
E-access to public information, case II SAB/Wa 335/12
December 20th, 2012, Tomasz RychlickiPolish citizen demanded the publication of his complaint against the cancellation of the proceedings of his action that was filed before the Constitutional Tribunal, on Tribunal’s website. He argued that this is public information and should be widely available. The Tribunal refused. Therefore, he decided to submit a complaint for failure to act to the Voivodeship Administrative Court in Warsaw. Legal counsel representing the Tribunal argued at the hearing that there is no legal basis for publication of such complaint on the Internet, and explained that the complaint has been filed after a final decision to discontinue the proceedings and, therefore, should not at all be processed by.
The Voivodeship Administrative Court in its judgment of 18 December 2012 case file II SAB/Wa 335/12 dismissed the complaint. The Court ruled that public authorities are required to publish information if they are obliged to do so by law. The Court pointed out that there is a failure to act if the authority refuses to disclose information, which is required to make available. According to the Court, the complaint is not such information. In addition, according to the decree of the President of the Constitutional Tribunal on the disclosure of pleadings at www.trybunal.gov.pl website, under the link “cases”, the following materials are available: i) the decision for posting complaints, but it does not apply at the initial stage of deciding on the admission of a complaint or request, ii) an electronic copy of the complaint (with supplementary documents), without attachments after referring the constitutional complaint (application) by the Court to decide on the mertis.
See also “Polish case law on e-access to public information“.
E-access to public information, case II SAB/KR 152/12
November 28th, 2012, Tomasz RychlickiIn 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.
See also “Polish case law on e-access to public information“.
E-access to public information, case II SAB/Wa 245/12
October 25th, 2012, Tomasz RychlickiThe Voivodeship Administrative Court in Warsaw in its judgment of 24 October 2012 case file II SAB/Wa 245/12 ruled that official topographic maps that were created and are kept in the databases by the Head Office of Geodesy and Cartography (GUGiK) are public information and must be made available on the request of the creator of dobraulica.pl website.
See also “Polish case law on e-access to public information“.
E-access to public information, case II SAB/Kr 105/12
October 19th, 2012, Tomasz RychlickiTomasz 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.
See also “Polish case law on e-access to public information“.
Criminal law, case IV K 875/07
September 19th, 2012, Tomasz RychlickiA 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.
Criminal law, case III K 56/12
September 14th, 2012, Tomasz RychlickiRobert Frycz created a website that was available under anytkomor.pl domain. The domain name and the content referred to the activities of the Polish president Bronisław Komorowski. It hosted a game entitled “Komor Killer” in which the player was able to throw feces in the animated figure of the President Komorowski.
The Prosecutor Office from Tomaszów Mazowiecki pressed charges against Mr Frycz based on the provisions of Article 135 § 2 of the Polish Criminal Code – CRC – (in Polish: Kodeks Karny) of 6 June 1997, published in Journal of Laws (Dziennik Ustaw) No 88, item 553, with subsequent amendments.
Article 135. § 1. Whoever commits an active assault on the President of the Republic of Poland
shall be subject to the penalty of the deprivation of liberty for a term of between 3 months and 5 years.
§ 2. Whoever insults the President of the Republic of Poland in public
shall be subject to the penalty of the deprivation of liberty for up to 3 years.
The judge decided to conceal the hearing due to breach of good manners and important private interests of the Polish President. The District Court in Piotrków Trybunalski in its judgment of 14 September 2012 case file III K 56/12 found Mr Frycz guilty and sentenced him for the penalty of one year and three months of of the restriction of liberty with the obligation to perform 40 hours of community service per month.
Trade mark law, case Sp. 202/12
September 11th, 2012, Tomasz RychlickiApple, Inc. filed the request for invalidation of the right of protection for the word-figurative trade mark A.PL registered for goods and services in Class 9, 35 and 42 and owned by the Polish company Internet S.A. from Warszawa. The Polish company also provides an online grocery store under the domain name a.pl. The main arguments presented by the U.S. company were based on confusing similarity between the sign A.PL and national and Community trade marks that are owned by Apple. Arguments based on the unfair use of the reputation were also raised.
The Adjudicative Board held the first hearing on 29 august 2012 case no. Sp. 202/12. However, due to the large volume of evidence supplied by Apple, the hearing was adjourned.
Tax law, case I FSK1644/11
August 27th, 2012, Tomasz RychlickiA taxpayer who sold the old porcelain and books which were inherited from grandparents and parents, and bought on the antique fairs, was ordered by the Polish tax authorities to pay VAT for four years. Every year the taxpayer sold hundreds of these things, for more than three thousand PLN. Only 3089 PLN is the amount of income received during the year that is deemed as free of tax,. According to tax authorities this activity could not be regarded as a hobby, but as a professional activity, that should be taxed.
The Supreme Administrative Court in its judgment of 9 August 2012 case file I FSK 1644/11 dismissed the complaint of the taxpayer.
Consumer protection, case XVII Amc 5817/11
August 26th, 2012, Tomasz RychlickiThe 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 C 116/12
August 9th, 2012, Tomasz RychlickiEryk Schuman wrote an article regarding Klaudiusz Sevkovic who is an alderman of Chorzów city and also the president of the local handball club. This critical piece appeared at dlachorzowa.pl website. According Mr Schuman, the data given in the declaration of interests of the alderman, could indicate that Mr Sevkovic uses the communal property in his private economic activities. Sevkovic filed a suit for the protection of his personal interests. He argued that the article overstated the amount of cash taken from the club. Mr Schuman wrote that the alderman took 275 thousand PLN (Schuman used the abbreviation “tys.” which stands for thousand in Polish) for a contract work. The journalist referred to a statement of financial interests filed by Sevkovic. However, the amount disclosed in the statement was 275 PLN not 275 tys. PLN. Schuman argued that it was an unintentional mistake in the text, and it was corrected immediately after he noticed it. He noted that the goal of the article was to draw attention to irregularities of the activities of alderman. Meanwhile, Sevkovic argued that such false information was visible on at least for two weeks and it was removed only after sending a letter to the editor to request a correction, and to publish an apology, which, however, never appeared on the website.
The District Court in Katowice in its judgment of 6 August 2012 case file I C 116/12 ruled that Eryk Schuman infringed Mr Sevkovic’s personal interest. The Court noted that the article served to undermine the credibility and good name of Sevkovic in the public opinion. The Court did not consider the text in question as a “typographical error”.
E-access to public information, case II SAB/Wa 30/12
August 3rd, 2012, Tomasz RychlickiA Polish citizen requested a Mayor of the Community to disclose copy of the existing office instructions which are in force in the community. Mayor replied that information covered by the request is available on the Community website. The applicant filed a complaint on the failure to act.
The Voivodeship Administrative Court in Warsaw in its judgment of 13 July 2012 case file II SAB/Wa 30/12 ruled that the public authority has not provided the requested information, because the Mayor had only indicated its source – the online Public Information Bulletin (BIP). According to the Court, the Mayor should also give a direct link, under which the requested information is located. The mere URL to the BIP of the Community, cannot be considered as complying with the request.
See also “Polish case law on e-access to public information“.
Tax law, case I SA/Łd 657/12
August 2nd, 2012, Tomasz RychlickiThe Voivodeship Administrative Court in Łódź in its judgment of 29 June 2012 case file I SA/Łd 657/12 held that the agreement that provides the website to use for advertisers is deemed as the unnamed contract and is similar in its provisions to a contract of tenancy as defined in the Article 693 of the Civil Code – CC – (in Polish: Kodeks Cywilny) of 23 April 1964, published in Journal of Laws (Dziennik Ustaw) No. 16, item 93, with subsequent amendments.
Article 693. § 1. By a contract of tenancy, the landlord shall assume the obligation to give a thing to the tenant for use and the collection of fruits for definite or indefinite time, and the tenant shall assume the obligation to pay to the landlord the rent agreed upon.
The Court decided that the income from advertising should be taxed like tenancy contracts or leases, which allows a taxpayer to choose a lump sum settlement on registered revenues.
Personal interests, case I C 407/12
August 1st, 2012, Tomasz RychlickiFS 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.
Personal data protection, case II SA/Wa 2821/11
July 26th, 2012, Tomasz RychlickiThe 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.
See also “Polish regulations on personal data protection“, “Polish case law on personal data protection“
Personal data protection, case C-461/10
June 7th, 2012, Tomasz RychlickiThe Court of Justice of the EU in its judgment of 19 April 2012 Case C-461/10 Bonnier Audio AB and Others v Perfect Communication Sweden AB ruled that Directive 2006/24/EC of the European Parliament and of the Council of 15 March 2006 on the retention of data generated or processed in connection with the provision of publicly available electronic communications services or of public communications networks and amending Directive 2002/58/EC must be interpreted as not precluding the application of national legislation based on Article 8 of Directive 2004/48/EC of the European Parliament and of the Council of 29 April 2004 on the enforcement of intellectual property rights which, in order to identify an internet subscriber or user, permits an internet service provider in civil proceedings to be ordered to give a copyright holder or its representative information on the subscriber to whom the internet service provider provided an IP address which was allegedly used in an infringement, since that legislation does not fall within the material scope of Directive 2006/24;
It is irrelevant to the main proceedings that the Member State concerned has not yet transposed Directive 2006/24, despite the period for doing so having expired.
Directives 2002/58/EC of the European Parliament and of the Council of 12 July 2002 concerning the processing of personal data and the protection of privacy in the electronic communications sector (Directive on privacy and electronic communications) and 2004/48 must be interpreted as not precluding national legislation such as that at issue in the main proceedings insofar as that legislation enables the national court seised of an application for an order for disclosure of personal data, made by a person who is entitled to act, to weigh the conflicting interests involved, on the basis of the facts of each case and taking due account of the requirements of the principle of proportionality.
E-access to public information, case II SAB/Lu 10/12
June 4th, 2012, Tomasz RychlickiThe Association of Leaders of Local Civic Groups (SLLGO) requested the Mayor of Opole Lubelskie town to disclose information regarding the fund from the years 2009-2011. The request was sent via e-mail. The Mayor ordered the SLLGO to supplement formal defects of the request and claimed that this form of an electronic document must be signed by the certified electronic signature as referred to in the Polish Act of 17 February 2005 on the Informatization of Entities Performing Public Tasks – IEPPT – (in Polish: ustawa o informatyzacji działalności podmiotów realizujących zadania publiczne), published in Journal of Laws (Dziennik Ustaw) No 64, item 565 as amended, and the Act of 18 September 2001 on Electronic Signature – ESA – (in Polish: ustawa o podpisie elektronicznym), published in Journal of Laws (Dziennik Ustaw), No 130, item 1450, with subsequent amendments. SLLGO refused to comply and argued that the provisions 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, allows for requesting the disclosure, even verbally, without any formality. The Mayor decided to leave the request without examination. The decision was based on the provisions of Article 64 § 2 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.
Article 64.
§ 1. The application will not be examined if the applicant’s address is not included in the application and it cannot be identified from the data available.
§ 2. If the application does not fulfil the requirements of law, the applicant shall be summoned to correct the defects within 7 days, with a notice advising that failure to comply will result in the application not being examined.
The Voivodeship Administrative Court in Lublin in its judgment of 20 March 2012 case file II SAB/Lu 10/12 ruled that the Mayor remained inactive and unjustifiably applied the provisions of the APC, therefore, the Court obliged the Mayor to examine the request. The authority that is obliged to disclose public information is not entitled to demand that a request submitted in electronic form has to be signed by any electronic signature. The Court reminded that the intention of the legislature was to unformalize the proceedings for the disclosure of public information, in order to ensure and fulfill the constitutional principle of openness of public life. The API indicates that a request for such information may take any form, and even the person requesting has not to be fully identified.
See also “Polish case law on e-access to public information” and “E-signatures in Poland“.
E-proceedings law, case III CZP 9/12
May 30th, 2012, Tomasz RychlickiThe 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 RychlickiGrzegorz 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.
Internet domains, case III CSK 120/11
May 15th, 2012, Tomasz RychlickiMEDianus sp. z o.o. and Medianus Agencja Reklamowa sp. z o.o. are seated in the same city, at a location nearby. The first one uses medianus.net domain name and the second medianus.pl. The first company was entered in the Register of Business Entities in the National Court Register (KRS) as MEDianus in June 2003 r. The second one was entered in 2009. MEDianus sp. z o.o. filed a complaint, to prohibit the other company to use the name “medianus” in the company name and as a domain name, based on the provisions of Article 3 and 5 of the Polish Act of 16 April 1993 on Combating Unfair Competition – CUC – (in Polish: ustawa o zwalczaniu nieuczciwej konkurencji), published in Journal of Laws (Dziennik Ustaw) No. 47, item 211, with subsequent amendments. MEDianus sp. z o.o. argued the the use of the same company name caused many confusions with delivery of post or invoices.
The District Court dismissed all claims. However, the Appellate Court in Kraków agreed with MEDianus sp. z o.o. appeal and ordered Medianus Agencja Reklamowa to change its company name and website and to publish an apology in two national newspapers.
The Polish Supreme Court in its judgment of 9 December 2011 case file III CSK 120/11 dismissed the complaint filed by Medianus Agencja Reklamowa. The Court held that in order to apply the provisions of Article 5 of the CUC, both companies have to be in competitive relationship. This situation happens when there is a risk of confusion with regard to the identity of entrepreneurs. The Court also confirmed that the so-called cybersquatting is an unnamed delict (tort) under the Polish law on combating unfair competition.
See also “Polish case law on domain names“.
Personal interest, case II C 626/11
April 27th, 2012, Tomasz RychlickiIn 2007, for about 6 months, the Polish Central Anti-corruption Bureau collected telecommunications data, including billings and location data from Base Transceiver Stations, of a Polish journalist Bogdan Wróblewski. Mr Wróblewski sued the Polish State Treasury which according to the Polish law represents the Polish state in certain legal aspects..
The District Court in Warsaw in its judgment of 26 April 2012 case file II C 626/11 has confirmed that the Central Anti-corruption Bureau violated personal interests of a journalist by collecting his telecommunications data. The Court pointed out that privacy is a fundamental human right and its breach must be justified and proportionate. The permission is limited “objectively” to offenses of corruption and “qualitatively” – its condition should be determined by the fact that there are not available less invasive means of control which could be useful. The process of receiving of telecommunications data must take into account these limitations each time it is initiated.