Archive for: legal regulations on computer networks

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 C-461/10

June 7th, 2012, Tomasz Rychlicki

The 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 Rychlicki

The 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 Rychlicki

The District Court in Toruń requested the Polish Supreme Court to answer the question whether a party of civil proceedings is allowed to file an appeal in form of electronic document. If the answer would be “yes”, the Court also wanted to know whether the deadline for lodging an appeal is confirmed by the date on which the letter was received by the device receiving the court’s e-mails. The District Court additionally enquired, whether such letters can be signed by electronic signature as defined in the Act of 18 September 2001 on Electronic Signature – ESA – (in Polish: ustawa o podpisie elektronicznym), published in Journal of Laws (Dziennik Ustaw) of 15 November 2001, No 130, item 1450, with subsequent amendments.

The Supreme Court in its judgment of 23 May 2012 case file III CZP 9/12 held that filing an appeal by e-mail is acceptable only, if a specific provision allows for such action. Currently, this option is very limited in the Polish law. The printed version of an appeal filed by electronic means may be treated as effective, if it will be signed by the party at the request received from the Court, and the date for submission of such a letter to the court is then the date the printing was done.

Access to public information, case XVI K 112/11

May 18th, 2012, Tomasz Rychlicki

Grzegorz Pluciński, the CEO of the Polish company Mainframe, filed a private accusation against Andrzej Machnacz who was the Director of the Centre of Information of the Ministry of the Interior and Administration in 2008-2010. It is probably the first case based on the provisions of Article 23 of the Polish Act of 6 September 2001 on Access to Public Information – API – (in Polish: Ustawa o dostępie do informacji publicznej), published in Journal of Laws (Dziennik Ustaw) No. 112, item 1198, with subsequent amendments.

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

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

Internet domains, case III CSK 120/11

May 15th, 2012, Tomasz Rychlicki

MEDianus 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.

R-200943

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.

Z-360648

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“.

Access to public information, case I OSK 2265/11

May 11th, 2012, Tomasz Rychlicki

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

The Voivodeship Administrative Court in Warsaw in its judgment of 4 February 2010 case file II SAB/Wa 155/09 agreed with the Company and ordered the MIA to disclose requested information. The Court ruled that such expertises are public information, so they should be disclosed, unless they contain secret information protected by law. The Minister of MIA filed a cassation complaint. The Supreme Administrative Court in its judgment of 3 August 2010 case file I OSK 757/10 repealed the contested judgment and returned it to the VAC for further reconsideration. However, the SAC only discussed and held that the VAC did not examine whether there was administrative inaction of the MIA. The Court did not examine the allegation that there was a breach of regulations of the Polish Act of 6 September 2001 on access to public information – API – (in Polish: Ustawa o dostępie do informacji publicznej), published in Journal of Laws (Dziennik Ustaw) No. 112, item 1198, with subsequent amendments. The Voivodeship Administrative Court in Warsaw in its judgment of 8 September 2011 case file II SAB/Wa 174/11 was bound by the interpretation of the SAC, and decided that there was administrative inaction. The Minister of the Interior and Administration, once again filed ​​a cassation complaint.

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

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

Personal interest, case II C 626/11

April 27th, 2012, Tomasz Rychlicki

In 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.

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.

Tax law, case II FSK 1548/10

April 2nd, 2012, Tomasz Rychlicki

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

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.

Civil law, case VI C 143/11

March 24th, 2012, Tomasz Rychlicki

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

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

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

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

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

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.

Database protection, case C‑604/10

March 13th, 2012, Tomasz Rychlicki

The Court of Justice of the EU in its judgment of 1 March 2012 Case C-604/10 Football Dataco Ltd and Others v Yahoo! UK Ltd and Others held that Article 3(1) of Directive 96/9/EC of the European Parliament and of the Council of 11 March 1996 on the legal protection of databases must be interpreted as meaning that a ‘database’ within the meaning of Article 1(2) of that directive is protected by the copyright laid down by that directive provided that the selection or arrangement of the data which it contains amounts to an original expression of the creative freedom of its author, which is a matter for the national court to determine. As a consequence:
– the intellectual effort and skill of creating that data are not relevant in order to assess the eligibility of that database for protection by that right;
– it is irrelevant, for that purpose, whether or not the selection or arrangement of that data includes the addition of important significance to that data, and
– the significant labour and skill required for setting up that database cannot as such justify such a protection if they do not express any originality in the selection or arrangement of the data which that database contains.
The Court also ruled that the Directive 96/9 must be interpreted as meaning that, subject to the transitional provision contained in Article 14(2) of that directive, it precludes national legislation which grants databases, as defined in Article 1(2) of the directive, copyright protection under conditions which are different to those set out in Article 3(1) of the directive.

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.

Procedural law, case I CSK 138/08

January 17th, 2012, Tomasz Rychlicki

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

Personal interest, case IV CSK 665/10

November 7th, 2011, Tomasz Rychlicki

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

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

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

E-access to public information, case IV SA/Gl 1002/11

October 14th, 2011, Tomasz Rychlicki

A journalists requested one of the Polish companies to disclose information about the earnings of its directors (CEOs) and members of the supervisory board. He also wanted to know how many prizes, bonuses and other financial inducements were received by the CEO and the board members in the last three years, and how much the company has spent on advertising and promotion, how much spending and subsidies were distributed for non-governmental organizations, staff training, banquets and small meetings. He also demanded the indication of dates, names and amounts, the method of selecting contractors. This request was based on 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. The journalist noted that the expected response should be sent to him via e-mail. The company provided information only on salaries, and refused to disclose other information that was subject to the request. The decision has been sent in the form of an electronic document to an e-mail address provided by a journalist. The company noted that other information belong to the category of “processed information”, therefore, the applicant has to indicate why the disclosure of such information is particularly important for the public interest. The journalist filed a complaint against this decision.

The Voivodeship Administrative Court in Gliwice in its judgment of 19 September 2011 case file IV SA/Gl 1002/11 rejected it, because of procedural reasons. However, the VAC held that the administration decision issued in the form of an electronic document must be signed by a secure electronic signature that is verifiable by a valid qualified certificate. The administrative decision that does not meet these requirements can not be regarded as signed, and therefore is not valid according to the provisions of Article 14 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 14. Principle of written proceedings
§ 1. All matters shall be disposed of in writing or in the form of an electronic document as defined in the Act of 17 February 2005 on Informatization of Operation of Entities Performing Public Tasks (Journal of Laws No. 64, item 565, as ammended), to be served by means of electronic communication.

The VAC also noted that in this case the decision has not been delivered in the proper form.

Article 110.
The public administration body issuing the decision shall be bound by it from the time of its service or publication, unless the Code provides otherwise.

Although in this case the content of the decision was known but it was not delivered in the form provided in the provisions of the APC. The decision was in fact delivered in writing but it was served by electronic means and in a way that was inconsistent with the provisions of APC, which could not be considered as effective service.

See also “E-signature law, case II SA/Gd 573/10“, “E-signature law, case I OPP 25/08“, “E-signatures in Poland“, and “Polish case law on e-access to public information“.

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.

Personal interest, case I ACa 1273/11

October 3rd, 2011, Tomasz Rychlicki

Mr Andrzej Jezior is a councillor of the Town Council in Ryglice, and he also runs a personal website available at andrzejjezior.blog.onet.pl. He often post comments regarding affairs of local life of the young Ryglice town. Some readers of his website posted negative comments on Bernard Karasiewicz, who was at this time the mayor of this small town. Despite the fact that Mr Jezior removed these comments, Mr Karasiewicz sued for violation of his personal interest. The suit was based on regulations included in the Polish Act on Elections to municipal councils, county councils and regional assemblies, in connection with regulations included in the Polish Act on the direct elections of village-mayor (prefect), town mayor, president of a city.

The District Court in Tarnów in its order of 15 November 2010 case file I Ns 162/10 agreed with the mayor and ordered Mr Jezior to publish an apology on his website, prohibited him from further distribution of these comments and ordered him to pay 5000 PLN for Caritas of the Tarnowska diocese and the case expenses in the amount of 240 PLN. The Court ruled, that Mr Jezior should be held liable for the comments that appeared on his website, because they came from people enjoying freedom of expression. Running a website that allows for posting such comments should be considered a wrongful action that is contrary to public policy and the principles of social coexistence. Mr Jezior appealed.

The Appeallate Court in Krakow in its order of 17 November 2010 case file Acz 1457/10 dismissed the complaint.

Mr Karasiewicz lost local elections in 2010. He sued Mr Jezior for violation of his personal interest again, alleging the comments caused that he was not re-elected to serve as a mayor of Ryglice. This time the suit was based on the regulations included in the Civil Code.

The District Court in Tarnów in its judgment of 3 October 2011 case file I C 319/11 ordered the defendant to publish an apology in the local press for “distributing” content that infringes upon the personal interests of the plaintiff and his family, to pay 1000 PLN compensation and reimbursement of the proceeding costs in the amount of 650 PLN. The Court dismissed the claim where the plaintiff demanded the payment of compensation in the amount of 10.000 PLN. The Court ruled that defendant is responsible and he should bear the consequences that he has made a forum that was available for the publication of any message. Mr Jezior appealed. The Appeallate Court in Kraków in its judgment of 19 January 2012 case file I ACa 1273/11 reversed the judgment of the District Court and dismissed the suit.

Tax law, case I SA/Ol 270/11

September 24th, 2011, Tomasz Rychlicki

The Director of a Tax office decided that a person who led undeclared but taxable economic activity is subject to VAT. This decision was based on the basis of bank statements and information provided by the auction website Allegro. The amount of the tax obligation was set out in the amount of tax due, without reduction of input tax, because the tax payer did not submit any invoices that would serve as evidence of purchase of the goods that were later resold via Allegro.

The Voivodeship Administrative Court in Olsztyn in its judgment of 29 June 2011 case file I SA/Ol 270/11 held that a person who conducts business activities that were undeclared to tax, has the right to deduct the input VAT due, but such person must have the purchase invoices, because without them, the tax authorities are unable to verify the prices of the goods resold.

Tax law, case I SA/Łd 762/10

September 24th, 2011, Tomasz Rychlicki

The Voivodeship Administrative Court in Łódź in its judgment of 23 September 2010 case file I SA/Łd 762/10 held that a person whose account on an auction website was illegally hacked and used for sale of goods by someone else, is not obliged account to tax for such activity.

Trade mark law, case C-236/08

September 6th, 2011, Tomasz Rychlicki

The Court of Justice of the EU in its judgment of of 23 March 2010 joinded Cases C-236/08 to C-238/08 ruled that the Article 5(1)(a) of First Council Directive 89/104/EEC of 21 December 1988 to approximate the laws of the Member States relating to trade marks and Article 9(1)(a) of Council Regulation (EC) No 40/94 of 20 December 1993 on the Community trade mark must be interpreted as meaning that the proprietor of a trade mark is entitled to prohibit an advertiser from advertising, on the basis of a keyword identical with that trade mark which that advertiser has, without the consent of the proprietor, selected in connection with an internet referencing service, goods or services identical with those for which that mark is registered, in the case where that advertisement does not enable an average internet user, or enables that user only with difficulty, to ascertain whether the goods or services referred to therein originate from the proprietor of the trade mark or an undertaking economically connected to it or, on the contrary, originate from a third party.

2. An internet referencing service provider which stores, as a keyword, a sign identical with a trade mark and organises the display of advertisements on the basis of that keyword does not use that sign within the meaning of Article 5(1) and (2) of Directive 89/104 or of Article 9(1) of Regulation No 40/94.

3. Article 14 of the Directive 2000/31/EC of the European Parliament and of the Council of 8 June 2000 on certain legal aspects of information society services, in particular electronic commerce, in the Internal Market (‘Directive on electronic commerce’) must be interpreted as meaning that the rule laid down therein applies to an internet referencing service provider in the case where that service provider has not played an active role of such a kind as to give it knowledge of, or control over, the data stored. If it has not played such a role, that service provider cannot be held liable for the data which it has stored at the request of an advertiser, unless, having obtained knowledge of the unlawful nature of those data or of that advertiser’s activities, it failed to act expeditiously to remove or to disable access to the data concerned.

Telecommunication law, case XVII AmA 62/08

August 27th, 2011, Tomasz Rychlicki

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

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

Internet domains, case I ACa 1087/10

August 2nd, 2011, Tomasz Rychlicki

The Court of Conciliation for Internet Domains at the Polish Chamber of Information Technology and Telecommunications (the CCID) in its award of 9 March 2010 case file 74/09/PA dismissed the complaint brought by Italian company Bisazza against Polish entrepreneur Rafał Kacprzak Installation.pl from Wrocław who registered the following domain names: bisazza.pl, bisazza.com.pl and bisazza-installation.com. Bisazza claimed that the registration of .pl domains infringed on its CTM BISAZZA no. 001494590 and word-figurative CTM “BISAZZA mosaico” no. 001500248. Surprisingly, the Court did not agree with arguments provided by the Italian company and held that there was no infringement because the regulations included in the Polish Industrial Property law that did not allow for such interpretation. According to the CCID, there was no delict/tort of unfair competition as activities of both companies should be deemed as complementary. The CCID noted that Bisazza could act more carefully and it should have registered both domain names much earlier. According to the Court, by advertising products of the Italian company, Mr. Kacprzak was not acting as a cyber squatter because he did not only intend to increase his financial benefits but he was doing it in order to maximise mutual benefits. The Court also said the Mr. Kacprzak did not infringe on the company name.

CTM no. 001500248

Bisazza S.p.A. filed a complaint against this controversial decision. The Company claimed the arbitration award is contrary to the public policy rules established in the Republic of Poland, including the protection of acquired rights, social justice, stable and secure law, comprehensive examination of the case, consistency of legal decisions and integrity of the legal system.

The Court for the Community Trade Marks and Community Designs (in Polish: Sąd Okręgowy w Warszawie Wydział XXII Sąd Wspólnotowych Znaków Towarowych i Wzorów Przemysłowych) in its judgment of 20 September 2010 case file XXII GWzt 17/10 annulled the questioned award. To begin with, the Court reminded that the Polish legislator sought to strengthen the arbitration proceedings by limiting the possibility of challenge of the awards issued by courts of arbitration. The competence of common courts in controlling the correctness of awards issued by arbitration courts are very limited and strictly defined. The petition for the reversal of the arbitration award belongs to the category of special appeals. It has a cassatory character (annulment of a judicial decision is allowed only in certain cases under strict conditions). In such proceedings the Court will not examine the merits of the dispute (if the facts warrant issued ruling) or verify the correctness of the findings that were made and accepted. All the grounds justifying of the petition for the reversal of the arbitration award are included in the Article 1206 §1-2 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.

§ 1 By way of an application a party may apply for the award to be set aside if:
1) there was no arbitration agreement, the agreement is not valid, ineffective or has expired under the law applicable to it;
2) the party was not given proper notice of the appointment of an arbitrator, of the arbitration proceedings or was otherwise unable to present its case before the arbitration tribunal;
3) the award deals with a dispute not contemplated by or beyond the scope of the arbitration agreement, provided that, if the decisions on matters submitted arbitration can be separated from those not so submitted or falling beyond the scope of the arbitration agreement, then only that part of the award which relates to the matters not submitted or falling beyond the submission may be set aside; the fact that a matter is beyond the scope of the arbitration agreement cannot constitute a ground for setting aside the award if a party who participated in the proceedings did not object to those claims being heard;
4) the composition of the arbitration tribunal or the fundamental rules of arbitral procedure were not in accordance with the agreement of the parties or with a provision of law;
5) the award was obtained by way of a crime or on the basis of a forged or falsified document,
6) a final judgment has already been made in the same case between the same parties.

§ 2. The arbitration award shall also be set aside if the court finds that:
1) the dispute was not capable of settlement by arbitration under the law;
2) the award is contrary to the public policy rules in the Republic of Poland (public order clause).

The Court noted that when assessing whether an arbitration award is contrary to the fundamental principles of law, the Court should take into account its content and not the correctness of the proceedings that were held before the arbitration body. The basic principles of the law underlying the assessment of the award should be understood not only as the constitutional rules but also as the general norms and rules in particular areas of law. The breach by an arbitration body of the proper substantive law justifies the reversal of the arbitration award only if the award is contrary to legal order. The arbitration body shall decide on the dispute according to the law of the legal relationship and when the parties explicitly mandated it – by the general principles of law or equity/fairness. The Court for the Community Trade Marks and Community Designs concluded that the interpretation of basic principles of trademark law both national and Community, that was provided by the CCID in its award, shows lack of understanding of the merits of law and lack of the ability to apply existing rules to the facts of this case. The arbitration court committed various irregularities: by qualifying the rights to Bisazza trade marks as national property rights, in examining the infringement based on only one character – probably a word trade mark – without considering the reputation, by dismissing the infringement claims on the basis of facts that do not have any meaning in trademark law while failing to examine identity/similarity of the marks and signs included in Internet domains and the goods and services of each party. The court reminded the arbitrator that the rules and regulations under the First Council Directive 89/104/EEC of 21 December 1988 to approximate the laws of the Member States relating to trade marks, the CTMR and the case law of the Court of Justice of the UE apply directly in disputes over infringement of the Community trade mark. These rules and regulations must be applied also by national courts including arbitration bodies. Incorrect choice of legal norms and wrongful interpretation led to an unjustified deprivation of protection which is afforded to Bisazza in relation to its trademarks. Mr Kacprzak appealed.

The Appellate Court in Warsaw in its judgement of 1 April 2011 case file I ACa 1087/10 overturned the judgment of the Court for the Community Trade Marks and Community Designs. The Appellate Court found that since the CCID ruled that it has no jurisdiction to hear and decide upon some of the demands made by Bisazza, and rejected them in the suit, the decision was final and could not be controlled at all by the civil courts, including the proceedings caused by an action for annulment of an arbitration award. The findings stating that the CCID had no jurisdiction, that were based on the domain names regulations issued by the Scientific and Academic Computer Network (Naukowa i Akademicka Sieć Komputerowa), did not constitute a breach of the basic principles of the law (the public order clause), because Bisazza could take these demands to a civil court. In the opinion of the Appellate Court, the District Court failed to consider whether the erroneous application of the Polish law rather than the EU by the CCID was tantamount to violation of the basic principles of the law. It could have been so, only if it had a significant impact on the content of the decision rendered by the CCID. In the opinion of the Appellate Court, however, there was no such effect in this case. The Appellate Court ruled that the relevant regulations provided in the Polish law are the result of the implementation of the Directive 89/104/EEC and its relevant provisions required for this case to be then included in the CTMR. The Court decided that the solutions provided in the Polish law are similar to those of EU legislation, and the classification of infringement of trade mark rights is done by the same rules. The Appellate Court noted that the CCID found that Mr Kacprzak used, in the course of trade, a trademark identical to a protected mark not in relation to identical or similar goods but to goods protected by this trademark. The defendant is an installer of Bisazza mosaics but not identical or similar mosaics. The CCID examined also whether or not there is an infringement of reputed trademark, however, found no such breach. The Appellate Court also ruled that the award of the CCID did not violate the rules and principles of a stable and secure law because these rules should relate to the creation of law and not its application.

See also “Polish case law on domain names“.

Personal interests, case III CSK 73/07

July 24th, 2011, Tomasz Rychlicki

Professor Andrzej Gregosiewicz posted very negative press articles and comments regarding homeopathic medicines, in particulr Oscillococcinum preparation that is produced by the French company Boiron. He also criticized regulations included in the Polish Pharmaceutical law. His publications were also available on different websites. These articles and comments included, among others, statements that homeopathic medicines may carry bird flu virus HN51, Professor Gregosiewicz argued that taking some homeopathic medicines is similar to suicide. He has named Oscillococcinum as the most widely used homeopathic product with the bird flu virus, and claimed that its producer was involved in bribery during the legislative process, in order to gain favourable regulations. Boiron Societé Anonyme sued for the infringement of personal interest. The case went through all instances.

The Supreme Court in its judgment of 10 May 2007 case file III CSK 73/07 held that the belief that someone is using the constitutionally guaranteed freedom of expression and he acts in the interest of public health is not a sufficient basis to consider certain actions as repealing the illegality of expression.

Personal interest, case I ACz 462/11

June 20th, 2011, Tomasz Rychlicki

A Polish Internet user has started a Facebook account in which he accused a travel agency Alfa Star from Radom of dishonesty and presented bad reviews of its services. Other Facebook users also started to post negative comments. The travel agency filed a suit for protection of personal interest together with the injunction to delete the Facebook account along with all the comments until the final decision in the case is rendered. The District Court in Radom granted the injunctive relief. Bartosz C. filed a complaint against this decision. The Appellate Court in Lublin in its order of 30 May 2011 case file I ACz 462/11 reversed the injunction. The Court noted that although the company has shown its interest in granting the injunction, it also seek this way to satisfy all claims included in the suit. If, before the end of the proceeding, the company would obtain the injunction to remove an account, this would actually satisfy its claims. The Court noted that the injunction should be granted to the extent that the plaintiff is afforded the adequate legal protection, and the defendant it not burden more than it’s needed. Facebook allows for the deactivation of an account and such injunction should be considered by the District Court as adequate injunction.

Criminal law, case II Kp 366/10

March 11th, 2011, Tomasz Rychlicki

The Polish prosecutor decided to discontinue the proceedings against a man who allegedly changed the password to an e-mail account of another person. The IP address of a computer that was used to commit this act served as the only evidence. The Prosecutor stated that a lot of people had access to this computer, so it was difficult or almost impossible to determine the offender. The aggrieved person has made a complaint to the Regional Court in Otwock. The court in its decision case file II Kp 366/10 anulled the order of the prosecution and ruled that the Prosecutor should prepare additional evidence such as interrogation and confessions of witnesses.