The Voivodeship Administrative Court in Poznań in its judgment of 22 October 2010 case file I SA/Po 486/10 held that a company that is required to send annual tax information about its employees, is also allowed to send to him or her a tax declaration in the form of electronic message (e-mail), under the condition that such e-mail is signed with the digital signature and the form of the tax declaration is preserved.
See also “E-signatures in Poland“.
The case of Tomasz W. and his image treated as personal data still continues. See “Personal data protection, case I OSK 667/09“. GIODO annulled its earlier decision, however it also refused to take account Tomasz W. requests in its new decision. GIODO ruled that personal data (photos and captions) of Tomasz W. are not presented on the website, and are not publicly available because they were removed from the specified address. GIODO also noted that Nasza-Klasa is still processing the personal data treating it as evidence, because it keeps them on its servers and in the system’s memory. GIODO finally held that the Company, as controller, is processing these data under provisions of Article 23(1)(v) of the PPD, under which such the processing of data is permitted because it is necessary for the purpose of the legitimate interests pursued by the controller and that the processing does not violate the rights and freedoms of the data subject. Among the reasons justifying the data processing, GIODO mentioned the possibility of establishing the responsibility of the recipient for violations of the Terms of Service that were set by the Company. This judgment is not final yet. GIODO filed a cassation complaint.
The Voivodeship Administrative Court in Warsaw in its judgment of 1 December 2010 case file II SA/Wa 1212/10 ruled that, these circumstances do not fulfill the conditions for legitimate interests of data processing. It should be noted that the condition relates to the existing and unquestionable situation, so if there is a need to demonstrate a need to claim in business, not a situation where the data are processed for eventual trial and the possible need to prove that personal data obtained without the consent of the person concerned shall be processed in accordance with the law. The Court also noted that Tomasz W. only announced but he did not initiate any courts proceedings against Nasza-Klasa. Therefore, according to the Court, Nasza-Klasa was not allowed to process personal data only to protect itself against any future and uncertain claims mentioned by Tomasz W. Otherwise, there are doubts how long to process personal data if Tomasz W. fails to comply with his announcement.
See also “Polish regulations on personal data protection” and “Polish case law on personal data protection“.
The Voivodeship Administrative Court in Wrocław in its judgment of 24 November 2010 case file I SA/Wr 1080/10 ruled that the client can deduct all the VAT in case of advance payment of fees for the entire period of software maintenance. The position of a tax authority stating that deduction is possible only in the settlement period in which service will be completely provided, is incorrect. It is another judgment favorable to taxpayers.
The Voivodeship Administrative Court in Warsaw in its judgment of 30 June 2010 case file VI SA/Wa 595/10 held that the terms “solution of a technical nature” or “technology” are not defined in the European Patent Convention. Thus, the development of these concepts depends on the practice of the EPO. There is no doubt that in practice, the EPO is using much more liberal criteria for assessing the patentability of computer-implemented inventions than in the initial period of application of the EPC. However, this position was not accepted by all parties to the Convention. In addition, the Enlarged Board of Appeal on 12 May 2010, refused to resolve the problem presented by the President of the EPO, on the interpretation of the exclusion of computer programs “as such” in the context of the criteria for patentability of inventions relating to computer programs, leaving the question to practice. It can be concluded that the practice of liberalization of evaluation criteria for patentability of computer-implemented inventions was not accepted by all experts of the EPO. There are cases of the EPO that were based on the same provisions of the Convention but came with divergent decisions, as well as cases in which almost identical provisions of the Convention and national laws are interpreted, respectively, by the EPO or national bodies in different ways. This case concerned the International Patent Application PCT/EP99/08958 “Record carrier, apparatus and method for playing back a record carrier, method of manufacturing a record carrier”.
The Supreme Administrative Court in its judgment of 19 March 2012 case file II GSK 85/11 reversed the contested judgment and the decision of the PPO. The Court held that the decree of the President of the Polish Patent Office on the patentability of inventions has an internal character, and it can not be the basis of the justification of the decision.
Professor Janusz S. Bień requested the Institute of Literary Research of the Polish Academy of Sciences to disclose public information on the license agreement, concerning the online version of the Dictionary of the Polish language of the sixteenth century. The request was filed under 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. Mr Bień did not receive the requested information, but also was not denied this information in the form of an administrative decision. As a result, prof. Bień brought an action for failure to act. The Voivodeship Administrative Court in Warsaw, in its judgment of 18 June, 2009 case file II SAB/Wa 14/09 ordered the Director of the Institute of Literary Research to examine the request.
On 13 August 2009, the Institute of Literary Research refused to provide requested public information because of the secret of the entrepreneur. The basis for refusal was Article 5(2) of the API.
Article 5. 1. The right to public information is subject to limitation to the extent and on the principles defined in the provisions on the protection of confidential information and on the protection of other secrets being statutorily protected.
2. The right to public information is subject to limitation in relation to privacy of a natural person or the secret of an entrepreneur. The limitation does not relate to the information on persons performing public functions, being connected with performing these functions, including the conditions of entrusting and performing these functions and in the event when a natural person or entrepreneur resigns from the right to which he was entitled to.
The entity, which was denied the access to the public information in respect to its exclusion of its openness when quoting the protection of personal data, the right to privacy and the secret other than state, official, treasury or statistical secret, is entitled to put an action to the court for making such information available. Professor decided to bring an action.
The Regional Court for Warszawa Śródmieście I Civil Division in its judgment of 12 March 2010 case file I C 1305/09, dismissed the action because the prof. Bien has not demonstrated that he is legally entitled to obtain a photocopy of the disputed agreement. The Court arbitrarily assumed that as a basis for disclose of a photocopy of the disputed agreement should be used Article 222 § 1 of the Civil Code governing the claim of the owner of a thing against the person who actually possess it (rei vindicatio).
Article 222. § 1. The owner may demand of a person who has actual control of a thing to release that thing to him unless that person has the right, effective with respect to the owner, to control the thing.
§ 2. The owner shall have the right to claim restitution of his lawful position and abstention from infringements of law, against a person who infringes his ownership otherwise than by depriving the owner of the actual control of a thing.
Professor Bień appealed. The District Court in Warsaw, V Civil Division, in its judgment of 9 November 2010 case file V Ca 2388/10, annulled the contested judgment and ordered Institute of Literary Research of the Polish Academy of Sciences to provide photocopies of the agreement.
Kataryna, actually Katarzyna Sadło appeared in the Polish blogoshpehre shortly after the so-called Rywin affair. Since then Kataryna simultaneously publish her blogs on both blox and salon24.pl websites. She quickly became well-known person who comments on political life in Poland and received a large number of comments. Her identity quickly began to attract the interest of the mass-media. A few journalists were suspected for writing under this pseudonym. Kataryna gave interviews in press but did not disclose her identity.
In May 2009, the owner Salon24 website announced that Krzysztof Czuma, son of the Polish Minister of Justice Andrzej Czuma, sent a letter to Salon24 seeking the removal of lying and offensive blog entry of “a Kataryna”. Salon24 responded that the content of the blog posts does not affect the TOS of Salon24 and therefore it will not be removed. However, Kataryna announced that if the minister Czuma would like to bring the civil lawsuit against her, she will reveal her personal data.
Shortly after that, the Polish daily newspaper “Dziennik Polska-Europa-Świat” published information that it knows the identity of the blogger. Although the newspaper did not publish her name, but described it in a way that allowed for unambiguous identification. These were more than enough information to let Internauts to identify Katarzyna Sadło as Kataryna.
Kataryna decided to reveal (tweet) the contents of SMS, which has received from Sylwia Czubkowska, a journalist reporter from Dziennik, in which the she urged Kataryna to disclose her identity in the newspapers and warned that otherwise the information may be used by “Fakt” which is a tabloid owned by the same publisher – Axel Springer Poland. Kataryna sued Axel Springer, the publisher of “Dziennik” and the editors of this newspaper for violation of her right to privacy. The case was brought before the District Court in Warsaw case file XXIV C 760/09, however it was settled out of the court.
A young man was charged with the removal of computer data in the form of virtual objects belonging to a specific game avatar. He acted to the detriment of another person, without authorization, with an Internet account in the Massively Multiplayer Online Role-Playing Game – Metin2. According to the indictment he obtained access (login, password) to someone else’s account using a keylogger software. The charges were based on provisions of Article 287 § 1 of the Criminal Code – CRC – (in Polish: Kodeks Karny) of 6 June 1997, Journal of Laws (Dziennik Ustaw) No 88, item 553, with subsequent amendments.
Article 287. § 1. Whoever, in order to gain material benefits, affects automatic processing or transmitting information, or changes or deletes record or introduces a new record on an electronic information carrier, without being authorised to do so,
shall be subject to the penalty of deprivation of liberty for a term of between 3 months and 5 years.
§ 2. In the event that the act is of a lesser significance, the perpetrator shall be subject to a fine, the penalty of restriction of liberty or the penalty of deprivation of liberty for up to one year.
§ 3. If the fraud has been committed to the detriment of a next of kin, the prosecution shall occur on a motion of the injured person.
The Regional Court in Sławno in its judgment of 19 August 2010, case file II K 127/10 found him guilty of committing the offense, and sentenced to 1 year of imprisonment, suspended for a three-year period of probation. The court also ordered him to pay a fine up to 20 daily rates (10 PLN for a rate, a total of 200 PLN) and placed under supervision by a probation guardian.
A locally practicing lawyer (advocate) from Kielce used the nickname “bondd007” and posted on an online forum, among others such comments that the Director of the Tax Office in Kielce “probably likes” when the manager of one of the departments “puts an ice cream” – the expression in Polish slang that means oral sex.
The Regional Court in Kielce in its judgment of March 2010 case file XII K 32/10, found the lawyer guilty of defamation. The Court held that such words insulted the manager, slander her to sexual contact with the principal in the workplace and thus exposed her to a loss of trust necessary for the position occupied. The District Court in Kielce in its judgment of 19 October 2010 upheld the judgment.
The Inspector General for Personal Data Protection (GIODO) in its decision of 13 September 2010 case file DOLiS/DEC-1013/10 concerning DOLiS-440-276/10 ruled that according to the wording of Article 18(1) pt 2 of the Polish Act of 29 August 1997 on the Protection of Personal Data – PPD – (in Polish: Ustawa o ochronie danych osobowych), unified text published in Journal of Laws (Dziennik Ustaw) of 6 July 2002, No. 101, item 926, with subsequent amendments, in the event of the breach of provisions on personal data protection, the GIODO ex officio or at the request of the person concerned, by an administrative decision, shall order the restoration of the situation in accordance with the law and, in particular, to complete, update correct, disclose or not to disclose of personal data.
Article 18
1. In case of any breach of the provisions on personal data protection, the Inspector General ex officio or upon a motion of a person concerned, by means of an administrative decision, shall order to restore the proper legal state, and in particular:
1) to remedy the negligence,
2) to complete, update, correct, disclose, or not to disclose personal data,
3) to apply additional measures protecting the collected personal data,
4) to suspend the flow of personal data to a third country,
5) to safeguard the data or to transfer them to other subjects,
6) to erase the personal data.
2. The Inspector General’s decisions referred
Given the circumstances of the case, the GIODO considered that he is authorized – by the established rules – to order the Company to disclose to the applicant information about a person who, on in 2010, at 20:29 had registered on www.gowork.pl web portal using the nickname “anonymous”, i.e. information about IP address of a computer used to post the questioned entry.
See also “Polish regulations on personal data protection” and “Polish case law on personal data protection“.
The Helsinki Foundation for Human Rights requested the Internal Security Agency (in Polish: Agencja Bezpieczeństwa Wewnętrznego – ABW) to provide information on operational activities conducted in the form of operational control. The ABW refused to provide such information and argued that such information on operational control, without exception, and the distinction between statistical and other information, is a state secret and are marked “top secret”. The Foundation filed a complaint for failure to act.
The Voivodeship Administrative Court in Warsaw in its judgment of 12 January 2010 case file II SAB/Wa 152/09 held that the ABW did not provide information as requested, nor has issued a proper refusal. therefore, the ABW failed to act properly, The VAC has committed the Head of the Internal Security Agency to proceed the application of Helsinki Foundation of 1 June 2009, either by providing relevant information or by issuing a decision to refuse, in accordance with Article 16(1) 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, which will allow the Foundation to use legal means, including the right to bring an action in the courts because of the reason for the refusal.
Article 16. 1. The refusal to make the public information available and discontinuation of proceedings to make the information available in the case defined in Article 14, it. 2 by the body of public authority takes place by means of a decision.
2. In relation to the decision, defined in it. 1, the provisions of the Code of Administrative Proceedings shall apply, however:
1) the appellation from the decision is investigated within 14 days,
2) the justification of the decision on the refusal of making the information available includes also 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 Head of the Internal Security Agency filed a cassation complaint. The Supreme Administrative Court in its judgment of 7 July 2010 case file I OSK 592/10 held that the case-law of administrative courts presents the view that the complaint on the failure to act by the public authority during the proceedings for access to public information may be filed not only against the so-called “silence” of the authority, but also in a situation in which the dispute arose between the applicant and the addressee as to the nature of the information requested. However, the SAC was not able determine what is the nature of the information requested.
See also “Polish regulations on personal data protection“, “Polish case law on personal data protection” and “Polish case law on e-access to public information“.
Mr Łukasz Kasprowicz publishes frequently different news and information about the municipal office at Mosina on his website (blog) available at mosina.blox.pl. Zofia Springer the Mayor of Mosina filed for a private charge against Mr Kasprowicz on the basis of Article 212 § 2 of the Criminal Code – CRC – (in Polish: Kodeks Karny) of 6 June 1997, Journal of Laws (Dziennik Ustaw) No 88, item 553, with subsequent amendments.
Article 212. § 1. Whoever imputes to another person, a group of persons, an institution or organisational unit not having the status of a legal person, such conduct, or characteristics that may discredit them in the face of public opinion or result in a loss of confidence necessary for a given position, occupation or type to activity shall be subject to a fine, the penalty of restriction of liberty or the penalty of deprivation of liberty for up to one year.
§ 2. If the perpetrator commits the act specified in § 1 through the mass media shall be subject to a fine, the penalty of restriction of liberty or the penalty of deprivation of liberty for up to 2 years.
§ 3. When sentencing for an offence specified in §1 or 2, the court may adjudge a supplementary payment in favour of the injured person or of the Polish Red Cross, or of another social purpose designated by the injured person a supplementary payment (nawiązka).
§ 4. The prosecution of the offence specified in § 1 or 2 shall occur upon a private charge.
The mayor felt insulted by some of the stories published by the blogger and concluded that the routine writing about her and the office is undermining its reputation. The Observatory of Media Freedom in Poland run by the Helsinki Foundation for Human Rights was present during the hearing as a person of trust, based on Article 361 § 3 of the 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. During the hearing on 9 May 2010, Łukasz Kasprowicz was referred by the Court for a psychiatric examination (in search for the opinion of an expert psychiatrist), and the counsel for the defence was appointed by the Court.
The Regional Court in Poznań Stare Miasto in its judgment of 25 January 2011 case file VIII K 745/09/8 sentenced Łukasz Kasprowicz for three hundred hours of community service and prohibited Mr Kasprowicz from performing professional activities as a journalist for one year, which also means the annual ban on publishing articles on the Internet. Mr Kasprowicz appealed. The District Court in Poznań in its judgment of 8 June 2011 case file IV Ka 266/11 overturned the questioned judgment. The Court acquitted Mr Kasprowicz of 13 charges, and in the other two the Court decided to discontinue the case/proceedings due to the relatively low social harm of the actions. Zofia Springer filed a cassation complaint to the Supreme Court of the Republic of Poland.
The Polish company conducts its business based mainly on providing IT services and sales of software and hardware. The Company enquired the Tax Office whether the fees paid by it to the contractors based in the U.S. and the Netherlands in connection with making available of software, are subject to the flat tax at source of the distribution of software, i.e. in Poland.
The Voivodeship Administrative Court in its judgment of 13 September 2010 case file III SA/Wa 1008/10 held that fees paid for the use of a computer program does not fall within the definition of royalties specified in the agreements on avoidance of double taxation with Holland and the USA. Therefore can not be taxed in Poland.
The Voivodeship Administrative Court in Gdańsk in its order of 9 September 2010 case file II SA/Gd 573/10 held that the legal effectiveness of a letter brought by a party to an administrative court by electronic means must be confirmed by its later signature. This is the requirement provided in Article 46 § 1 pkt 4 of the Act on the Law on proceedings before administrative courts – PBAC – (in Polish: Prawo o postępowaniu przed sądami administracyjnymi) of 30 August 2002, published in Journal of Laws (Dziennik Ustaw) No 153, item 1270, with subsequent amendments, which says that each letter must contain the signature of the party or its representative. This also applies to letters sent by electronic means. This ancient requirement is still in force even if there is the Polish Act on the Informatization of Entities Performing Public Tasks – IEPPT – (in Polish: ustawa o informatyzacji działalności podmiotów realizujących zadania publiczne) of 17 February 2005, Journal of Laws 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) of 15 November 2001, No 130, item 1450, with subsequent amendments, because both acts did not introduce the electronic administrative proceedings or electronic docketing systems to the Polish procedure.
See also “E-signature law, case I OPP 25/08” and “E-signatures in Poland“.
The Voivodeship Administrative Court in Opole in its judgment of 18 August 2010 case file I SA/Op 215/10 held that copies of VAT invoices can be stored in electronic form, if the files are properly secured and readable and the storage system allows for the reproduction of such invoices in the paper format at the request of tax authority, in its original form.
The Voivodeship Administrative Court in Wrocław in its judgment of 27 July 2010 case file I SA/Wr 592/10 held that the Directive 112 did not include the obligation to keep copies of invoices in the same form in which they were sent. Also § 21(2) of Regulation of the Minister of Finance on 25 May 2005 on the tax refund to certain taxpayers, the advance tax refund, invoicing, the storage of invoices and the list of goods and services, to which the exemptions from taxes on goods and services are not applicable (in Polish: Rozporządzenie Ministra Finansów z dnia 25 maja 2005 r. w sprawie zwrotu podatku niektórym podatnikom, zaliczkowego zwrotu podatku, wystawiania faktur, sposobu ich przechowywania oraz listy towarów i usług, do których nie mają zastosowania zwolnienia od podatku od towarów i usług), does not follow that restriction to the form in which to store invoice was associated with the way they have been sent to the customer or made available to. The Court also noted that the invoice should be issued in duplicate, but this does not mean that the invoice has to be kept identical in form, which is an invoice sent to the buyer. Invoice kept by the issuer and received by the buyer has to be identical in content and therefore the information contained on the invoice relates to the transaction.
A Polish citizen filed a civil suit against Nasza Klasa company – the owner and operator of social networking website. He seek an apology and a payment for the infringement of his personal interest by the fact that Nasza Klasa refused to provide the plaintiff with personal data of the person who set up a fake profile, and allowed for the creation of such a profile, which was finally closed after several unsuccessful requests.
The Inspector General for Personal Data Protection in its decision of 5 March 2010 ordered Nasza Klasa to provide the plaintiff with information (full name, address, e-mail and IP address of a computer) of the person who set up the profile of the YYY number on nasza-klasa.pl website, ordering at the same time, to fulfill the obligation referred to in Article 33(1) of the Polish Act of 29 August 1997 on the Protection of Personal Data – PPD – (in Polish: Ustawa o ochronie danych osobowych), unified text published in Journal of Laws (Dziennik Ustaw) of 6 July 2002, No. 101, item 926, with subsequent amendments.
Article 33
1. At the request of the data subject, within the period of 30 days, the controller shall be obliged to notify the data subject about his/her rights, and provide him/her with the information referred to in Article 32 paragraph 1 point 1-5a as regards his/her personal data, and in particular specify in an intelligible form:
1) the category of personal data contained in the file,
2) the means of data collection,
3) the purpose and the scope of data processing,
4) the recipients of the data and the scope of access they have been granted.
While executing this decision Nasza Klasa informed the plaintiff that the fictional profile was set up on behalf of a person of a first name “s d.”, the second name “w. I’m gay”, having e-mail address xyz@wp.pl. At the same time the company informed the plaintiff that it has no data with regard to IP addresses from which the profiles are set on its website, these data are not collected, and kept or archived. However, as it was also clear from the order of the District Court in Poznań of 16 June 2010 on an ongoing parallel criminal proceedings that Nasza Klasa provided the Police with the IP number, host and e-mail address of the person who has registered this fictitious profile containing personal information of the plaintiff.
The District Court in Wrocław in its judgment of 23 July 2010 case file I C 144/10 ruled that the way that Nasza Klasa has executed the decision bears hallmarks of malignancy, where the repetition of the contents of the fake profile certainly violated the plaintiff’s dignity. The Court noted also that the activity of Nasza Klasa which allows its users for the opening of online accounts, including fictitious accounts does not have the characteristics of illegality. Therefore, the plaintiff was not allowed to infer the responsibility of Nasza Klasa, because during the use of legal mechanisms, there was an infringement of his personal interests. In other words, the illegal nature has only the act of the direct infringer – an unknown person who registered fictional profile on nasza-klasa.pl website, that was containing personal information of the plaintiff, including his image, in the context of information insulting him.
The mere creation of a registration/login mechanism within defendant’ hosting services, without any specific negligence in the performance of duties imposed by law cannot justify the defendant’s liability for the infringement of personal rights of the plaintiff. According to the Court such reasoning would justify shifting the liability of the direct offender of personal right to the hosting service provider.
The Court, held that Nasza Klasa committed a violation of personal rights by refusing to grant the plaintiff an access to personal data of the person who set up a fake profile infringing on his personal interest and being opprobrious to his identity, despite the fact that the plaintiff was entitled to obtain it, which was confirmed by final decision of the GIODO. The Court ruled that Nasza Klasa company as a professional hosting provider, which created and maintains a social networking website – in accordance with its TOS – should be aware of how the decision of Inspector General for Personal Data Protection should be executed. Moreover, Nasza-Klasa was aware of the circumstances of the plaintiff’s case, which lasted almost a year. At that time, the plaintiff has shown a determination to assert his rights, despite the fact that without a personal data of the offender, has repeatedly been put in a kind of a hopeless situation, not only by law enforcement, but also by Nasza-Klasa company. Since Nasza-Klasa did not have the name of the person who registered the fictitious profile with the data of the plaintiff, it shall inform the plaintiff and explain the problem and execute the decision of the GIODO with regard to available data (IP, e-mail address of the perpetrator). Nasza Klasa decided to file an appeal complaint. The Appelatte Court in Wrocław in its judgment of 18 Nobember 2010 case file I ACa 1129/10 reversed the previous judgment and dismissed the suit.
This is the continuation of a story described in “Personal data protection, case II SA/Wa 1598/09“. The Supreme Administrative Court in its order of 15 July 2010 case file I OSK 1079/10 decided to stay the execution of the decision issued by the Inspector General for Personal Data Protection (GIODO) and ruled that the Polish Act of 16 July 2000, Telecommunications Law – TLA – (in Polish: Prawo telekomunikacyjne), published in Journal of Laws (Dziennik Ustaw) No 171, item 1800 with subsequent amendments, provides broader protection of personal data because of telecommunications confidentiality, than the provisions of the Act of 29 August 1997 on the Protection of Personal Data – PPD – (in Polish: Ustawa o ochronie danych osobowych), Journal of Laws (Dziennik Ustaw) of 29 October 1997, No. 133, item 883, unified text published in Journal of Laws (Dziennik Ustaw) of 6 July 2002, No. 101, item 926, with subsequent amendments.
The Court held that the disclosure of IP addresses which enable identification of specific individuals, that was ordered during administrative proceedings initiated with regard to disclosure of such data, while such proceedings did not ended with judgment in force, may violate the provisions of Article 160 of the TLA.
Article 160.
1. An entity participating in the performance of telecommunications activities within public networks and entities cooperating with it shall keep the telecommunications confidentiality.
2. Entities referred to in paragraph 1 shall maintain due diligence, within the scope justified by technical or economic reasons, while securing telecommunications equipment, telecommunications networks and data collections from disclosing the telecommunications confidentiality.
3. A person coming into possession of a message not meant to be read by him/her when using radio or terminal equipment shall keep the telecommunications confidentiality. The provisions of Article 159 (3) and (4) shall respectively apply.
4. The recording of a message acquired in a manner described in paragraph 3 by a body executing control of telecommunications activities in order to document a violation of a provision of the Act, shall not be a violation of the telecommunications confidentiality.
While assessing the validity of the request to stay the execution of GIODO’s decision to disclose the requested IP address at this stage of proceedings, the Court agreed with the author of the cassation complaint, that the execution of the questioned decision at this stage makes it impossible to reverse the actions taken after the disclosure of the IP addresses, and such action should be seen as causing the effects that are difficult to reverse according to Article 61(3) of the Act on the Law on proceedings before administrative courts – PBAC – (in Polish: Prawo o postępowaniu przed sądami administracyjnymi) of 30 August 2002, Journal of Laws (Dziennik Ustaw) No 153, item 1270, subsequent later amendments.
§ 1 Filing a complaint does not stay the execution of the act or actions.
(…)
§ 3 After the delivery of a complaint to the court, the court may issue at the request of the applicant, the order to stay the execution, in whole or in part of the act or actions referred to in § 1, if there is a risk of causing significant damage or cause to be difficult to reverse, with the exception of the provisions of local law which entered into force, unless the special Act excludes the stay of their execution. The refusal to stay the execution of the act or actions by the authority, does not deprive the applicant of action to the court. This also applies to acts issued or adopted in all proceedings conducted within the same case.
The SAC held that if the Supreme Administrative Court would agree with the cassation complaint filed against the judgment of the Voivodeship Administrative Court of 3 February 2010 case file II SA/Wa 1598/09, the effects of the execution of the questioned decision could not be reversed, because the IP address identifying a specific person is available to another participant in the proceedings. Accordingly, the court held that the correct solution at this stage of proceedings, is to stay the execution of the questioned decision also with a view to the impact of which its execution might result in, as well as the nature of the protection of personal data resulting from the relevant regulations such as, inter alia, the TLA.
See also “Polish regulations on personal data protection” and “Polish case law on personal data protection“.
The Voivodeship Administrative Court in Opole in its judgment of 23 June 2010 case file I SA/Op 177/10, pointed to the lack of precision in the national legislation. The court stated that § 21(2) of Regulation of the Minister of Finance on 25 May 2005 on the tax refund to certain taxpayers, the advance tax refund, invoicing, the storage of invoices and the list of goods and services, to which the exemptions from taxes on goods and services are not applicable (in Polish: Rozporządzenie Ministra Finansów z dnia 25 maja 2005 r. w sprawie zwrotu podatku niektórym podatnikom, zaliczkowego zwrotu podatku, wystawiania faktur, sposobu ich przechowywania oraz listy towarów i usług, do których nie mają zastosowania zwolnienia od podatku od towarów i usług), does not provide that the limitation as to the form in which to store invoice is associated with the way they have been sent to the customer or have been made available in a different way. The VAC ruled that a literaly reading of the provisions included in Polish Regulation does not lead to the interpretation that if the invoice is made in a particular paper form, a copy must also be kept in the same form thereof.
This is the continuation of a story described in “Advertising of pharmaceuticals, case II GSK 461/09“. The Voivodeship Administrative Court in Warsaw in its judgment case file VI SA/ Wa 1136/10 canceled the decision of the Main Pharmaceutical Inspector (MPI) that ordered the Polish Federation for Women and Family Planning (in Polish: Federacja na rzecz Kobiet i Planowania Rodziny) to remove information about different contraceptions. Such information was published on the website operated by the PFWFP. Being bound by a legal interpretation issued by the Supreme Administrative Court, the VAC ruled that the mere use of the name of a pharmaceutical product does not prejudge that such message is advertising. One cannot automatically equate information on medicinal products with an incentive to use them.
See also “Polish regulations on pharmaceutical trade marks” and “Polish case law on advertising of pharmaceuticals“.
Allego.pl is a very popular Polish auction website. Michał Z. is one of many of its users. He was acting on behalf of his father’s company when he placed an auction. When setting the option “buy now”, he allegedly by mistake underpriced the item he was trying to sell. The item was valued for 74.000 PLN but Michał Z. set the “buy now” price for 7.400 PLN. Alicja W. decided to buy this item and she choose “buy now” option. She received an e-mail confirming her purchase from Allegro.pl
Michał Z. tried to void the contract, arguing that he has made a mistake when setting a price for this auction. When Alicja Z. came for the auctioned item, its owners have refused to release it. They proposed purchase of another one – in a promotional price of 50.000 PLN. Alicja Z. did not agree to a subsequent proposals, including 20.000 PLN compensation and she sued.
The District Court in Radom dismissed her claim. The Court ruled that the parties came to the conclusion of the contract of sale, but Michał Z. has successfully evaded of legal consequences of his offer, because it was made by error of fact. It was clear for the Court that the value of the item was given incorrectly, and it did not correspond to real costs of such products. The Court ruled that Alicja W. was certainly aware of this price disparity. She could have acquired such knowledge even from the website of the seller because the address was included in the offer. Alicja Z. appealed.
The Appellate Court in Lublin in its judgment case file I ACa 295/10 held that if the declaration of will has been made to another person, the evasion of legal consequences it permissible only if the error was caused by that person, even if such person was not guilty, or if such person was aware of the error (for example such knowledge was acquired during the negotiations) or the error could easily be noted by such person. According to the Court, none of these conditions has occurred in this case. The Court ruled that it cannot be assumed that someone must be aware of the fact that the price is wrong, and that it was possible for such person to find out the actual price.
The Appellate Court ruled that the District Court overlooked the fact that the auction was placed on Allegro website, which has its own rules (TOS) of trading/auctioning. The item was only available at the auction with the “buy now” option, in which the seller puts the goods at a fixed, predetermined price. The contract between the seller and the buyer takes upon confirmation of the “buy now” option, as the buyer is automatically notified. The terms of such auction cannot be changed in relation to the buyer who has made an offer, before such change was made. The seller, who choose this type of auction, is bound by the rules and cannot change the conditions of the transaction after a bid by the buyer. The Appellate Court sent this case back for reconsideration.