Archive for: Directive 2002/58/EC

Personal data protection, case I OSK 1666/12

August 26th, 2013, Tomasz Rychlicki

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text published in Journal of Laws (Dziennik Ustaw) of 6 July 2002, No. 101, item 926, with subsequent amendments, were repealed as of 7 March 2011.

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

However, these regulations should be still applied to proceedings initiated before the entry into force of the Act that repealed the above mentioned provisions, and there was no obstacle to justify the refusal to provide the requested data according to the provisions of Article 30 of the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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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.

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.

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.

Press law, case VI Ka 409/07

January 14th, 2009, Tomasz Rychlicki

Facts and legal dispute
A Polish TV channel, TVN, in its show entitled UWAGA broadcast footage that criticised the work of a debt collector, Wojciech D., who held office in a Pomeranian town of Bytów. Internauts were prompt to comment on his work. This boiled down mostly to offensive statements, some of which are provided below:

I suggest we lynch the guy, if legal methods failed. It seems that we’ll have to fight impudence with impudence! Citizens!!! This goes out to you.

How about we settled it ourselves, people? We could take him to the woods, take away his clothes and throw him out onto the streets, that would be fun!!!

I was lucky enough not to have anything to do with this guy. I am surprised with those, who had so much trouble with him, though. If he sold my apartment or broke my mum’s hand I would spare some change and call the boys from the hood. They would have known what to do with him ;)

Hang the collector by the balls in the centre of the town, shove a pound or two of drawing pins and broken glass into his ass, but on the other hand he might enjoy that … and let him see what suffering is … the struggle continues….

Fill him with carbide and add some water. Oh, that would be so nice for him, damn bureaucrat. When he fills up with gasses, light him up. A nice effect, only shreds would remain. Still, it’s just wishful thinking, he can be seen no-where around the town. We can’t get him.

The comments were published mainly on the GazetaBytowska. pl (Bytów Newspaper) website, also accessible at The authorities (police and prosecutor) addressed Leszek Szymczak, the administrator of the website, and asked him to hand over particulars of the commentators. The authorities intended to charge those persons with punishable threats addressed at the collector. Leszek Szymczak did not, however, provide the data. The police called the comments “press material” and the Public Prosecutor’s Office in Bytów recognised that the administrator of the website was responsible for the comments published on the forum. The Public Prosecutor’s Office also maintained that a website is a daily newspaper, by virtue of which under the press law it needed to be registered. Following the line of reasoning of the prosecutor, Leszek Szymczak ran the website (i.e. he published a daily newspaper) without proper registration. The prosecution charged Mr Szymczak with the first accusation – the infringement of Article 45 of the Polish Act of 26 January 1984 on Press law2 – APL – (in Polish: ustawa Prawo prasowe), published in Journal of Laws (Dziennik Ustaw) No 5, item 24, with subsequent amendmets.

Anybody who publishes a daily newspaper or a periodical without registration or with registration suspended is subject to a fine penalty or the restriction of liberty

This was made in connection with article 7(2) pt. 2 of the APL.

A daily is a general-information periodical print or a message transmitted via sound or sound and image published more frequently than once a week.

The manner of registration of dailies and periodicals is provided in Article 20 of the APL.

1. Publishing a daily newspaper or a periodical necessitates registration with a voivodeship court having jurisdiction in the seat of the publisher, hereinafter referred to as ‘the registrar body’. In such cases the regulations of the Code of Civil Procedure on nonlitigious proceedings, together with amendments resulting herefrom, shall apply.
2. A registration application mentioned in section 1 hereof shall include:
1) the title of a daily newspaper or a periodical together with the seat and an exact address of the editorial office,
2) particulars of the editor-in-chief,
3) specification, seat and exact address of the publisher,
4) the daily newspaper’s or the periodical’s frequency of publishing.
3. A registrar court shall substantiate the decision to register a daily newspaper of a periodical only upon a motion.
4. A daily newspaper or a periodical can be published if a registrar body failed to decide upon the application for the registration within 30 days from the day of the submission of the application.
5. Should the information mentioned in section 2 hereof be altered, the registration body shall be immediately noticed.

The prosecution also alleged that Leszek Szymczak published press material featuring criminal content that publicly incited its readers to commit offences. For that reason the prosecution pressed the second charge. Under article 49a of the APL

An editor who unintentionally published press material that featured criminal content mentioned in article 37a hereof, shall be subject to a fine penalty or the restriction of liberty.

Under Article 255 of the Criminal Code3 – CRC – (in Polish: Kodeks Karny) of 6 June 1997, published in Journal of Laws (Dziennik Ustaw) No 88, item 553, with subsequent amendments

1. A person who publicly calls for committing an offence of a fiscal crime shall be subject to a fine penalty, the restriction of liberty or imprisonment for up to two years.
2. A person who publicly calls for committing a crime shall be subject to the restriction of liberty for up to three years.
3. A person who publicly praises the commitment of a crime shall be subject to a fine penalty amounting to up to 180 daily rates, the restriction of liberty or imprisonment for up to one year.

Article 37a of the APL reads

If a person is sentenced for a crime committed by publishing a press material, the court may adjudicate an additional penalty constituting in the forfeiture of the press material.

The prosecution maintained that Leszek Szymczak committed the crime of the nonfeasance of duties. The prosecution did not, however, establish what actually was meant by lynching, or at whom the comments were directed (the collector’s name was not even once mentioned on the website).
It is noteworthy that Leszek Szymczak had registered a daily newspaper entitled Gazeta Bytowska when it was published in print4. In the period pointed at in the indictment, that is from April 13, 2004 to January 9, 2006, the court did not pass a decision that would make the registration invalid.

The Regional Court Słupsk in its judgment of 7 March 2007 case file II K 342/06 (with Judge Tadeusz Stodoła presiding) held that the first charge was legitimate, but owing to the minor social harm it remitted proceedings in the case. As for the second charge, the court held that posts of an internet forum indeed constitute press material and as such should be revised by editors and if they encounter inappropriate material, they should delete it. The court failed, however, to point to a specific law regulation that would necessitate Leszek Szymczak to delete any posts from his forum. Also this charge was dismissed. The court focused on the interpretation of the notion of “press material” and in this venture interpreted it correctly. The rub, though, remains in the fact that in this case the utmost importance should have been attached to the interpretation of the notions of a “daily newspaper” and a “periodical” since only those two kinds of press need to be registered with a court. Both parties appealed Leszek Szymczak appealed to overrule the judgment and dismiss the charge punishable under article 45 of the APL. He substantiated his appeal with, first of all, Article 17(1)2 of the Criminal Proceedings Code owing to the fact that under the law in effect publishers did not have to register websites in the register of daily newspapers and periodicals. Secondly, he also claimed that the regulations that impose such an obligation are too unclear to be a source of criminal liability according to the principle nulla poena sine lege certa et stricta (no punishment unless there is certain and strict law). Leszek Szymczak also appealed to change the sentence by acquitting the defendant from the offence provided in article 49a of the PLA owing to the fact that the defendant did not know about the illegal nature of the information (posts were uploaded/written by internauts) that the prosecution drew upon in the offence description. Because of that, his argument continued, the defendant could not be criminally liable, that is under Article 14(1) of the Polish Act of 18 July 2002 on Providing Services by Electronic Means – PSEM – (in Polish: ustwa o świadczeniu usług droga elektroniczną), published in Journal of Laws (Dziennik Ustaw) No. 144, item. 1204 with subsequent amendments, and Article 14 of the Directive 2000/31/EC6. Leszek Szymczak also appealed to completely overrule the abovementioned sentence and send the case back to the court of first instance for reconsideration.

The prosecution appealed against the judgment on the grounds of a mistake in factual findings that formed the basis for the judgment. It argued that the court was wrong to assess the social harm of the offence described in article 45 of the APL as minor (publishing an internet daily newspaper without proper registration) and to discontinue proceedings with respect to this charge. Still further, a correct analysis of the subjective and objective features of the offence, particularly the legal interests undermined by the offence and the conduct of the defendant, all lead to other conclusions, the prosecution reasoned. The prosecution also maintained that the court made another mistake in the factual findings forming the basis for the decision. The court allegedly was wrong to assess the social harm of the offence described in article 49a of the APL as minor (unintentional publishing of press material with criminal content) and to discontinue proceedings with respect to this charge. A correct analysis of both subjective and objective features of the offence, including legal interests undermined by the offence and negative consequences experienced by the aggrieved party, especially in the party’s life and professional situation, the gravity and manner of the violation of obligations resting with the defendant, including the considerable time period of publication of the criminal content on the website and the conduct of the defendant after having acquainted himself with the content, all lead to the conclusion that social harm of the acts performed by the defendant cannot be described as minor, the reasoning continued.

The District Court in Słupsk asked the Prosecutor’s Office to delegate to the court the case of posts published on the website. The court observed that when the Prosecutor’s Office asked the administrator of the website to hand over information about the posts of possibly criminal nature, he indeed handed it over. Afterwards the Office discontinued the proceedings–having found no features of a prohibited act–but then pressed charges and indicted the editor.

The District Court in Słupsk in its judgment of 7 February 2008 case file VI Ka 409/07 held that managing an internet website necessitates registration. In consequence, running a website without registration violates the law. The court held that the reasoning of the Regional Court was correct and, similarly to the Regional Court, it discontinued the proceedings (at the same time ascertaining that the act had caused minor social harm). If it was not for that decision of the court, taking the face value of those sentences, anybody could be put on trial for running a website without registration. In this part the case ends with a discontinuance of the case for a year. The District Court in its decision on appeal made some controversial statements. In particular, the court decided that publishing information on the internet with the use of sound and image depends on the publisher, so any soundless publication still complies with the definition of a daily newspaper/a periodical. As concerns the second charge, the District Court overruled the former sentence and delegated the case for another hearing to the Regional Court. Following, the court stated that a web portal, as a press title, needs to be registered: the District Court also suggested that

in a subsequent examination of the indictment, the Court should entertain upon sending case files back for pretrial proceedings due to its considerable shortcomings.

This might mean (the Regional Court still has to determine it) that the posted messages (posts) published on the forum might not have constituted an offence.

If we go as far as to admit that in the light of the definition provided in Article 7(2) pt. 1 of the APL a website (such as is indeed “press”, considerable doubts still remain whether such a website is a “daily newspaper” or a “periodical”. Both definitions refer to the notion of “print” but also go further to encompass more media by providing that is might convey “sound or sound an image information”. Owing to the general lack of sound in internet websites, it is hard to deny that this regulation does not describe such a publishing medium. Article 7(2)(2) of the APL provides

1) press shall be defined as periodical publications that do not form a single and complete whole, are published at least once a year and bear a constant title or a name, a number and a date, in particular: daily newspapers and periodicals, news agencies bulletins, constant telex messages, bulletins, radio and television broadcasts, film chronicles; press shall also be understood as any and all existing and emerging in the course of technological advancement means of mass media, including broadcasting stations and television and radio broadcasting systems installed in facilities that distribute periodically publications via print, image, sound or any other broadcasting means; the press shall also encompass teams of people and individuals that deal with journalism,
2) a daily newspaper shall be a general-information periodical print or a sound or sound and vision message published more frequently than once a week,
3) a periodical shall be a periodical print published at least once a year but not more frequently than once a week; this regulation shall apply also to messages broadcast by means of sound or sound and vision and any other means than those described in section 2.

Similar Polish case law
Let us turn to Polish judicature concerning similar cases. The Appellate Court in Rzeszów ruled that an internet website cannot be recognised as a “daily newspaper” or a “periodical” as understood by the APL7. In another case, the Appellate Court in Warsaw recognised a teletext service not as a daily newspaper but as a text message as understood by article 4(9) of the Polish Act of 29 December 1992 on Broadcasting8 – LOB – (in Polish: Ustawa o radiofonii i telewizji), published in Journal of Law (Dziennik Ustaw) of 1993, No 7 item 34, consolidated text of 19 Novemver 2004, published in Journal of Laws (Dziennik Ustaw) No 253 item 2531, with subsequent amendments. The press law provides the definition of “press material”. Article 7(2)4 of the Act reads

press material shall be any informative, journalistic, documental or other text or image already published or provided to the publisher and intended for publication in press, irrespective of the means of transmission, type, form, destination or authorship of the material.

The decision of the Supreme Court the criminal Chamber of 28 September 20009 in the case of “traditional media” reads as follows

reader’s letters constitute press material as understood by Article 7 (2) 4 of the Act of 26 January 1984 on Press Law (Dz. U. 1984 No. 5 pt. 24 as amended) under the condition that the letters have been sent to the editorial office with the intention to be published. The editor-in-chief is responsible for their publication. A reader’s letter can be, therefore, published after the information contained in the letter has been cautiously and diligently verified as provided for by article 12 (1) of the Press Law. Publishing a reader’s letter does not constitute quotation of another individual’s statement. In view of that the editor-in-chief is still responsible for its publication.

The Supreme Court’s (Customs Chamber’s) decision of December 7, 199310 reads as follows:

Article 24 (1) together with article 23 of the Criminal Code and article 37 of the Press Law of 26 January 2984 provide the basis for a non-property claim of the violation of personal interests in a press material. The claim may be filed against a publisher.

The authors also need to mention that the Republic of Poland is a civil law country and there are no binding precedents. Also, the Supreme Court’s resolution is only binding for the court that referred with a specific question but in practice Polish courts often apply rules that were interpreted by the Supreme Court.

Different European jurisdictions
The decision11 of the Appellate Court in Berlin (Landgericht) of May 31, 2007 is an apt example of a similar case in German jurisdiction. The case revolved around the responsibility of a moderator of a website for posts made by third persons and the theory of the so-called “impartial internaut”. The court held that a moderator of an online portal is burdened with no general obligation to review (oversee) posts uploaded by third parties. The case involved a dispute between the administrator of the portal, a website used to evaluate professors of colleges and universities, and one of the evaluated professors who was dubbed on a “psycho” and “the bottom one”. Even though the moderator, having received a notice, did remove the posts, the professor filed a complaint with the court. The court held, however, that in this case the posts boiled down merely to airing one’s opinion. The justification of the ruling reads as follows

Under the press law, any publisher Verbreiter can be seen as an offender (Prinz/Peters, Medienrecht, 1999, Rn, 35). The publisher is anybody who, as in this case, contributes to the distribution of a statement. (BGH NJW 1986, 2503 (2504)–Ostkontakte).

Any third parties that (having been viewed objectively) by their actions support (financially) illegal actions that infringe legally protected interests cannot be liable for the infringement in civil cases. The condition for actual liability as an offender is the default of the obligation of review and control. The specific circumstances of a given case should decide if and to what extent the control is or might be compulsory. The decision should also depend on the determination of the function and tasks of the person charged with infringement and that person’s responsibility. The defendant, being an administrator of a platform for exchanging views, did not infringe the obligation of such review/control. Individuals who administrate online portals do not have to control all their content. Owing to the immense amount of content, such control would be unfeasible12.

Even the condition that in the rules of the website the defendant did reserve the right to delete illegal posts does not lead, contrarily to the assertions of the plaintiff, to the recognition of a general obligation to control content. Content control is obligatory only when a person, the personal interests of whom have been violated, brings an accusation in the form of a written notice. The notice should contain a detailed description of the violated personal interests with respect to a specific part of the content. In such a case the administrator of a portal does not have to conduct extensive searches at high personal and technological expense. The administrator will only have to check if the post that the accusation concerns can be described (from the perspective of an objective internaut) as conforming with the law. The defendant, dissimilarly to the administrator of a portal in the case decided upon by the BGH that the plaintiff evoked, did not violate the obligation of control. The administrator of the portal, upon the reception of a message from the plaintiff that centred upon the slanderous post, immediately deleted the post from the forum13.

No crime where there are doubts
In the Polish law, the regulations of the Act on Providing Services by Electronic Means, for example Article 14(1), provide that

A person who gives access to the contents of a network IT system to a customer, where the customer stores data, is not aware of the illegal features of the data or activity connected with the data and upon receiving an official notification or credible information about the illegal features of the data or activity connected with it, immediately bars access to the data, shall not be responsible for the data.

Chapter 3 of the PSEM, entitled “Exemption of responsibility of the service provider for providing E-services”, includes, as the title itself suggests, a number of other exemptions. The chapter concludes with a regulation in article 15 that reads

Any company that renders services described in article 12-14 shall not be required to verify the data described in article 12-14 that is transmitted, stored or made available by that company.

Having reviewed the above regulations, it seems there are two that actually collide with each other–one from the PL and the other from the PSEM. The modus operandi should be drawn entirely from provisions of the law. Having determined it, only now can we turn to the analysis of regulations such as, for example, article 25(4) of the APL, which reads

The editor-in-chief shall bear the responsibility for the content of the material prepared by the editorial team and the organizational and financial issues of the company within the frames set up in the articles of association or relevant regulations. The editor-in-chief is also responsible for safeguarding linguistic correctness of press materials and counteracting their vulgarization.

Another article of the APL, already mentioned above, article 54b (included in Chapter 8, “Proceedings in press cases”) reads

Provisions on legal responsibility and proceedings in press cases shall be applied to the infringement of law connected with the transmission of human thought via means designed to distribute information, irrespectively of the technology of transmission, especially nonperiodical publications and other print, vision and sound products, other that press.

All criminal cases should be decided on in the scope of the principle nullum crimen sine lege (no crime without a law). The aforementioned cases are indeed riddled with doubts. The authors can hardly adhere to the claim that this clause might mean legal liability for the lack of registration of press other than a “daily newspaper” or a “periodical”, also because of the fact that the regulation covers mass media other than the press. In the authors’ opinion, the website can be recognised as “press” but is neither a “daily newspaper” nor a “periodical”.

The legal basis is Article 414 of the Criminal Proceedings Code.

1. After the court proceedings have been instigated, if circumstances precluding prosecution or information substantiating conditional discontinuance of the proceedings are recognized, the court may decide to discontinue the proceedings or discontinue the proceedings conditionally. However, if circumstances provided in article 17(1) 1 and 2 are recognized, the court may issue an acquitting judgement, unless the offender at the time of the offence was non compos mentis

and article 66 (with subsequent ones) of the Criminal Code

The court may conditionally discontinue penal proceedings if the guilt and social harm of the illegal act are nor considerable, circumstances of the act are doubtless and the attitude of the offender that has not been punished for an intentional crime, the offender’s personal conditions and former lifestyle substantiate the speculation that the offender will obey the rule of law and especially that will not commit another crime…

Since the is neither a daily newspaper nor a periodical, by discontinuing the proceedings in the case the courts apparently did not recognise that “the act was not committed or there was a lack of information sufficiently substantiating the suspicion of its committal” or that “the act did not bear the features of an illegal act or the law provided that the offender did not commit a crime”.

The Polish Act on Providing Services by Electronic Means was to implement into the Polish legislation the European Parliament and Council Directive 2000/31 of June 8, 2000 on certain legal aspects of information society services, in particular electronic commerce, in the internal market (Directive on electronic commerce) and the European Parliament and Council Directive 2002/58 concerning the processing of personal data and the protection of privacy in the electronic communications sector (Directive on privacy and electronic communications)14. The way Poland incorporated those two Directives into a single domestic legal act stirred considerable criticism15.

Many individuals pointed out that the implementation of the Directives boiled down mainly to the literal translation of their content into Polish, which was then put into a single legal act. In consequence, the Act draws on inconsistent terminology, for instance in some of the regulations the Polish Act uses the term “an information recipient” and in others “a service recipient”. Another problematic issue is the fact that the Act refers to other regulations provided in other domestic legal acts (e.g. the Telecommunications Law Act of 21 July 200016). What is even more, the regulations of the Polish Act do not explicitly set out if a service provider is exempt from civil liability or also criminal liability resulting from rendering e-services. Even further, the European Council reminded Poland that it had implemented the Directive 2000/31 only partially17. As a result, Poland initiated another legislative process that aimed at full implementation of the Directive, especially with regard to the implementation of the “country of origin” rule and the rule of the freedom of providing e-services.

Apart from the imprecise PSEM and the 1984 Press Law Act, which is a legal act originating practically in another era18, the only legal act that directly refers to internet publications is the Access to Public Information Act of September 6, 2001. The Act introduced an “official teleinformation publishing system” in the form of a “unified webpage system” (article 8). The only Polish legal act that suggests how to create websites (for public institutions to comply with the obligation to publish public information) is the Minister’s of Interior and Administration Regulation of January 18, 2007 on the Public Information Bulletin (BIP). Under article 9(2) of the Regulation

Where a subject, referred to in article 4(1) and (2) of the Act, owns an internet website, the subject’s own BIP website shall be created as a part of the website by placing a link with the BIP logotype that shall give direct access to the subject’s BIP website.

Apart from the imprecise definition of the Public Information Bulletin, which functions on the basis of the aforementioned Access to Public Information Act, there can also be the socalled “own website” which, even though provided for in the Regulation, is not defined therein. In consequence, while creating websites, public administration bodies are bound by no other rules than those existing in the “outer world”. Having recognised that, the authors put forward a statement that since in Leszek Szymczak’s case the charges (publishing a periodical without a registration) were not dropped owing to the lack of features of a prohibited act, the same charges (publication of internet websites without proper registration) can be brought against the highest public institutions in Poland. The authors asked the Chief Police Officer on May 8, 2007 the following: do these “own” internet websites (of public institutions) exist legally? The answer was that the Polish police does not register their internet websites with a registration court.

In a democratic country observing the rule of law, the situation of a public institution, which under Article 7 of the Polish Constitution “functions on the basis and within the limits of the law”, differs from the situation of a subject functioning on the basis of economic freedom. Apart from publishing a BIP bulletin, Polish public institutions can also publish daily newspapers and periodicals (which is allowed under article 8 of the APIA)

The publisher can be a legal entity, a natural person or a different organizational entity, even if it is not a legal entity. In particular a publisher can be a public institution, a staterun company, a political organization, a labour union, a cooperative, a selfgovernment body and other social organization, a church or any other religious organization.

If this is the case, public administration institutions should also fulfil legal conditions on the publication of such a newspaper or a periodical. The current practice shows, nevertheless, that the public administration massively creates internet websites and does not register it with registration courts. The Chief Officer of the Police answered the authors19.

The Act of 28 January 1984, the Press Law, does not recognize internet websites as daily newspapers or periodicals.

The first President of the Supreme Court, Lech Gordocki, made a similar statement, later published in the press20.

I am not going to apply to the Regional Court for the registration of the website of the Supreme Court since the Act does not provide such an obligation.

Neither the President of the Republic of Poland, nor the Commissioner for Civil Rights Protection, the Prime Minister of Poland and none of the Polish ministries and state agencies registered their own websites, which functionally do not differ from news websites. Then, if a court held that an individual who published a periodical without proper registration brought minor social harm, the court could rule otherwise if the charged entities were the police, the Prosecutor’s Office, the Ombudsman or even the President, who apart from BIP bulletins all publish news websites without registering them with registration courts21.

As already mentioned, the only normative suggestion concerning internet websites in Poland comes in the form of executive regulations relating to the Access to Public Information Act. These regulations do not differentiate between “websites”, “portals”, “vortals”, etc. Generally we do not know what a “portal”, a “vortal” or a “blog” are. However, Polish courts pass judgments in which judges try wrongly to differentiate between those terms22. If there is no difference between publishing a periodical necessitating proper registration and publishing a blog, then perhaps we should also scrutinise the publishing activities of Marek Siwiec, a Vice-President of the European Parliament, who has been publishing his ruminations at also without registration with a registration court since 2007.

Recent press releases in Poland induced several individuals to apply to registration courts for the registration of blogs as daily newspapers and periodicals (as understood by the Polish Press Law). In some of those applications courts decided to enter names of the blogs to the Register of Daily Newspapers and Periodicals. This, however, under the Polish law, does not mean that in Poland you need to register a blog with a registration court. First of all, such an application should be filed before publishing has started, but that, again, makes it impossible for a court to decide if a given activity necessitates registration. Secondly, courts cannot deny registration if an individual or an organisation files for the registration of something that is neither a daily newspaper nor a periodical. Under article 21 of the APL

A registrar body shall deny the registration if:
[1] the application does not contain data that the Act describes (the daily newspaper’s or the periodical’s title, the seat of the publisher and the exact address of the editorial office, the particulars of the editor-in-chief, the particulars of the publisher, the frequency of publishing of the daily newspaper or the periodical) and

[2] if granting registration would constitute infringement of the right to the legal protection of an existing press title.

Owing to the above, Polish registration courts did enter the names of blogs provided by their applicants23.

In the case of Leszek Szymczak, the defence asked the Polish Commissioner for Civil Rights Protection to apply for a revocation of the sentence (it can be applied for only by the Commissioner and the Prosecutor General). By the end of June 2008 the defence also filed a constitutional complaint (see the website of the Helsinki Foundation for Human Rights24).

The Regional Court in Słupsk in its judgment of 16 December 2008 acquitted Leszek Szymczak from charges of publishing press material featuring criminal content that publicly incited its readers to commit offences. See “Press law, case II K 367/08“.

1. Case file VI Ka 409/7.
2. Journal of Laws (Dziennik Ustaw) No.5, pos. 24, with subsequent changes.
3. Journal of Laws (Dziennik Ustaw) No.88, pos. 553, with subsequent changes.
4. On the basis of the decision of the Voivodeship Court in Slupsk Ns-Rej.Pr 8/91 of September 12, 1991.
5. Ustawa z dnia 18 lipca 2002 r. o świadczeniu usług droga elektroniczna, Journal of Laws (Dziennik Ustaw) of September 9, 2002, No.144, pos.1204, with subsequent amendments.
6. Directive 2000/31 of the European Parliament and of the Council of June 8, 2000 on certain legal aspects of information society services, in particular electronic commerce, in the Internal Market (Directive on electronic commerce) [2000] OJ L178/1-16.
7. Case file I ACa 277/05.
8. Case file I ACa 601/98. Broadcasting Act, Ustawa z dnia 29 grudnia 1992 r. o radiofonii i telewizji, Journal of Laws (Dziennik Ustaw) of 2004, No. 253 item 2531.
9. Case file V KKN 171/98.
10. Case file III CZP 160/93.
11. Az. 27 S 2/07.
12. Decision of December 7, 2006, Az. 10 W 106/06; BGH NJW 2004, 3102.
13. J. Kurek, Comment available at [Accessed November 10, 2008].
14. [2002] OJ L 201/37-47.
15. G. Raczka, Ochrona Uslugobiorcy uslug elektronicznych (Torun 2007), p. 63, W. Iszkowski, X. Konraski, “Elektroniczne uslugi”, Rzeczpospolita newspaper, March 4, 2003.
16. Journal of Laws (Dziennik Ustaw) of 2001, no.73, pos. 852, as amended.
17. Commission of the European Communities, First Report on the application of Directive 2000/31 of the European Parliament and of the Council of June 8, 2000 on certain legal aspects of information society services, in particular electronic commerce, in the Internal Market (Directive on electronic commerce), Brussels, November 21, 2003, COM(2003) 702 final, p. 19.
18. It is noteworthy that August 17, 1991 is a symbolic date recognised as the inception of the Polish internet, i.e. the first time when via an IP protocol the Physics Department of the Warsaw University sent data to the Computer Centre of the Copenhagen University.
19 Letter of June 19, 2007 regarding the answer of the spokesman of the Chief Officer of the Police concerning websites run by the police. See http:// [Accessed November 10, 2008].
20. In a Polish daily newspaper, Rzeczpospolita, on September 6, 2007.
21. See,, http:// [Accessed November 10, 2008].
22. See Judgment the district court in Warsaw (IV Civil Division) of June 9, 2008, case file Act IV C 806/07.
23. See,moj;nowy;organ;prasowy,7042.html [Accessed November 10, 2008].
24. See [Accessed November 10, 2008].

This article was originally published under the title Polish Courts Say Websites Should Be Registered As Press in the Computer and Telecommunications Law Review, C.T.L.R. 2009, 15(1), 9-14.