Polish IP & IT law » European Convention on Human Rights

Archive for: European Convention on Human Rights

They have the right, don’t they?

October 16th, 2008, Tomasz Rychlicki

Please read R. v. S and A., [2008] EWCA Crim 2177, and tell me why the Court does not want to recognize defendants’ right? Maybe it wants the case to be decided by the European Court of Human Rights? What is more interesting the British Appellate Court discuss one American judgment In Re Boucher, 2007 WL 4246473 (United States District Court for the District of Vermont, Nov. 29, 2007) which I mentioned in my post titled “Nemo se ipsum accusare tenetur“.

Just to remind you. The Convention for the Protection of Human Rights and Fundamental Freedoms, CETS No.: 005.

Article 6 – Right to a fair trial
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2. Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.

Do I miss something? Isn’t it the duty of the Police and a prosecutor to collect evidences against defendants and to prove that they are guilty?

Categories: European Convention on Human Rights | UK law | US law | computer crime | computer law.

Personal rights, case I ACa 385/2006

July 31st, 2008, Tomasz Rychlicki

Update on Februrary 27, 2010.
I reported on a final judgment in Justyna Steczkowska’s case in my post entitled “Personal rights, case I ACa 1176/09“.

My post that was written in Polish language is too long and probably boring for most of you. It concerns Justyna Steczkowska’s naked pictures taken during her holiday at Turkish Rivera and being published by “Super Express”, which is one of many Polish tabliods. I also wrote about some comments that were posted by Polish lawyers regarding the right of privacy issue and I wanted to write a comparative note about American and Polish legal systems but I am way too busy for such undertaking. I can only tell you that Maciej Ślusarek, an attorney representing Justyna Steczkowska, will have easier case in Poland as opposed to the US legal reality. Mr. Ślusarek previously won a case against “Super Express” publisher and editor-in-chief. It was a very important judgment of the Appellate Court in Warsaw of 29 September 2006, case file I ACa 385/2006. Mr. Ślusarek represented another Polish singer Edyta Górniak. The Court held that there is a need to distinguish the persons carrying out the public functions, if a person due to the character of those functions might be subjected to public control and the openness of their life is justified by the important society interest, from the commonly known persons, who are not subjected to such intense public control. The distinction included in court’s ruling is of course of great importance for protection limitations established for such persons.

The protection of personal image/publicity rights is provided in the Polish Civil Code in article 23. This provision outlines the personal image as one of the personal property/interests – an intangible personal right. Furthermore, a person who would like to claim an infringment of his/her rights might also exercise the civil protection of personal image afforded by provisions of the Polish Act on Authors Rights and Neighbouring Rights – ARNR – (in Polish: ustawa o prawie autorskim i prawach pokrewnych) of 4 February 1994, published in Journal of Laws (Dziennik Ustaw) No 24, item 83, consolidated text of 16 May 2006, Journal of Laws (Dziennik Ustaw) No 90, item 631 with later amendments.

Article 81.
1. The dissemination of an image shall require the permission of the person presented in that image. Unless there is a clear reservation, such permission shall not be required if such person has received the agreed price for posing.
2. The permission shall not be required for the dissemination of the image:
1) of a commonly known person, if such image has been made in connection with his/her performance of public functions and, in particular, political, social or professional functions,
2) of a person constituting only a detail of a whole, such as a meeting, a landscape, or a public event.
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Article 83.
The provisions of Article 78, paragraph 1 shall apply respectively to claims brought due to the dissemination of the image of the person presented in it and the dissemination of correspondence without the required permission of the person to whom it was addressed; such claims may not be asserted after the lapse of twenty years from the death of that person.

Additional protection is also provided in the Act of 26 January 1984 on Press Law, the Criminal Code and the Act of 29 August 1997 on Protection of Personal Data. The protection of privacy and publicity may also derive from the Constitution of the Republic of Poland of 2 April 1997.

Article 47
Everyone shall have the right to legal protection of his private and family life, of his honour and good reputation and to make decisions about his personal life.
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Article 54
1. The freedom to express opinions, to acquire and to disseminate information shall be ensured to everyone.
2. Preventive censorship of the means of social communication and the licensing of the press shall be prohibited. Statutes may require the receipt of a permit for the operation of a radio or television station.

And, of course, from the European Convention on Human Rights of 4 November 1950.

You have the right to remain silent

December 16th, 2007, Tomasz Rychlicki

I am really suprised that the U.S. courts are interpreting the Miranda rule so late when it comes to “computer passwords”. I mean In re Grand Jury Subpoena, 2007 U.S. Dist. LEXIS 87951, 2007 WL 4246473 (D. Vt. 2007). I suggest you read the judgment of the European Court of Human Rights judgment in Funke v. France, [1993] ECHR 7 (25 February 1993).

Categories: European Convention on Human Rights | US law | computer crime | criminal law.

I am not against IP

April 27th, 2007, Tomasz Rychlicki

Today is the World Intellectual Property Day. I think, I don’t need to explain that I’m not against the so-called intellectual property. I also do not agree with Richard Stallman’s controversial statements, but I share his thoughts and views that are included in the article entitled “Did You Say “Intellectual Property”? It’s a Seductive Mirage“. When it comes to trademarks, as a part of the IP domain, let me cite few excerpts from the judgment in Hanover Star Milling Co. v. Metcalf, 240 U.S. 403 (U.S. 1916), PDF file.

In the English courts it often has been said that there is no property whatever in a trade-mark, as such.
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In short, the trade-mark is treated as merely a protection for the good-will, and not the subject of property except in connection with an existing business. The same rule prevails generally in this country, and is recognized in the decisions of this court already cited.

What is more interesting, the Grand Chamber of the European Court of Human Rights ruled on 11 January 2007, in Anheuser-Busch Inc. v. Portugal (no. 73049/01), that a trademark is a property as it is provided for in the article 1 of the Protocol no 1, CETS no. 009 to the Convention for the Protection of Human Rights and Fundamental Freedoms, CETS no. 005.

By the way, a well-known American professor and a great expert on copyright law Jane Ginsburg uses the title Professor of Literary and Artistic Property Law. I’d also like to add that I don’t agree with Stephan Kinsella’s and his arguments put forward in the article entitled “Against Intellectual Property“, PDF file.

Categories: European Convention on Human Rights | International law | US law | copyright law | trademark law.

Legal hacking

April 7th, 2007, Tomasz Rychlicki

In 2004, Jerome Heckenkamp gained unauthorized access (colloquially, he hacked) to servers of corporations such as Qualcomm, Cygnus Solutions and eBay. Evidences of his actions were gathered also by a campus network administrator where Jerome’s computer was connected. He got them by hacking into the Heckenkamp’s Linux box. Judge Sidney R. Thomas ruled in United States v. Heckenkamp, 2007 U.S. App. LEXIS 7806 (9th Cir. 2007), PDF file, that such actions were justified and did not violate the Fourth Amendment provisions.

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

Jeffrey Savoy’s “hacking searches” were acknowledged as “special needs” exception and therefore the FBI was not required to obtain a search warrant. Jerome Heckenkamp was convinced based on regulations included in 18 U.S.C.S. § 1030(a)(5)(B) – Computer Fraud and Abuse Act (CFAA) of 1986, Pub. L. No. 99-474, 100 Stat. 1213 (Oct. 16, 1986) amending Counterfeit Access Device and Computer Fraud and Abuse Act of 1984, Pub. L. No. 98-473, 98 Stat. 1837 (Oct. 12, 1984).

In Polish law so-called “hacking” crimes are penalised by provisions included in the Criminal Code – CRC – (in Polish: Kodeks Karny) of 6 June 1997, Journal of Laws (Dziennik Ustaw) No 88, item 553, with later amendments.

Article 267.
§ 1. Whoever, without being authorised to do so, acquires information not destined for him, by opening a sealed letter, or connecting to a wire that transmits information or by breaching electronic, magnetic or other special protection for that information shall be subject to a fine, the penalty of restriction of liberty or the penalty of deprivation of liberty for up to 2 years.
§ 2. The same punishment shall be imposed on anyone, who, in order to acquire information to which he is not authorised to access, installs or uses tapping, visual detection or other special equipment.
§ 3. The same punishment shall be imposed on anyone, who imparts to another person the information obtained in the manner specified in § 1 or 2 discloses to another person.
§ 4. The prosecution of the offence specified in § 1 – 3 shall occur on a motion of the injured person.

In the international legal context such crimes were first covered by the Council of Europe Convention on Cybercrime signed in Budapest on November 23, 2001, CETS No. 185. The United States was one of 30 countries that signed the Convention on November 23, 2001. On August 2, 2006, the US Sentat ratified it.

You may find more information about the Fourth Amendment at findlaw.com website.