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Archive for: privacy

Personal interest, case II C 626/11

April 27th, 2012, Tomasz Rychlicki

In 2007, for about 6 months, the Polish Central Anti-corruption Bureau collected telecommunications data, including billings and location data from BTS, of a Polish journalist Bogdan Wróblewski. Mr Wróblewski sued the Polish State Treasury which according to the Polish law represents the Polish state in certain legal aspects..

The District Court in Warsaw in its judgment of 26 April 2012 case file II C 626/11 has confirmed that the Central Anti-corruption Bureau violated personal interests of a journalist by collecting his telecommunications data. The Court pointed out that privacy is a fundamental human right and its breach must be justified and proportionate. The permission is limited “objectively” to offenses of corruption and “qualitatively” – its condition should be determined by the fact that there are not available less invasive means of control which could be useful. The process of receiving of telecommunications data must take into account these limitations each time it is initiated.

Personal interest, case I CSK 111/11

March 25th, 2012, Tomasz Rychlicki

Cezary Pazura sued Grupa o2, the owner and publisher of pudelek.pl website. Mr Pazura claimed that the company infringed his dignity, the inviolability of the home, privacy and publicity, by publishing 17 articles that concerned his relationship with Edyta Zajac, then fiancee, and now his wife. He argued that comments like “his mistress was no longer pretending, what she meant?”, “oldish playboy” were clear examples of the infringement. The District Court agreed with Mr Pazura, but Grupa o2 appealled, and the Appellate Court reversed the contested judgment and dismissed the suit. Mr Pazura filed a cassation complaint.

The Supreme Court in its judgment of 14 December 2011 case file I CSK 111/11 repealed the contested decision and returned it to the Appellate Court for further reconsideration. The Court held that the public status of a person does not automatically mean that his or her private life becomes also a “public life”. The Court clarified the understanding of the provision of Article 14(6) of the Polish Act of 26 January 1984 on Press law – APL – (in Polish: ustawa Prawo prasowe), published in Journal of Laws (Dziennik Ustaw) No. 5, item 24, with subsequent amendmets.

It is not allowed to publish information and data concerning the private sphere of life without the consent of the person concerned, unless it is connected directly with the public activity of such a person.

The Court ruled that in this case it was necessary to demonstrate the relationship between the public activity carried out by Mr Pazura, and published image, or private information that was published on pudelek.pl website. Therefore, it had to be a relationship between a person’s behavior in the public sphere. In addition, the disclosure of such information should serve to protect specific, socially legitimate interest. Therefore, the primary task of the courts was to determine whether in this case, Mr. Pazura’s consent was granted, or whether it was not needed at all.

Personal interest, case I C 1050/09

June 3rd, 2011, Tomasz Rychlicki

Paweł Wodniak, journalist of the website “Fakty Oświęcim” was sued by Artur Kierczyński for violation of his personal interest. Mr Wodniak prepared a short video report in which presented testimonials of Broszkowice citizens, who participated in blocking the road 933 in a protest against a nearby gravel-pit from being functional. The report also contained footage of Marian Gołąb, who was the Mayor of Broszkowice, stating that there is already a criminal investigation underway on the ex-owner of the gravel-pit. Mr Gołąb released full name of Artur Kierczyński. Mr Kierczyński sued for violation of personal interest for releasing his full surname while there was an ongoing criminal trial against him. In his opinion, Mr Wodniak’s behavior breached the rule of alleged innocence and it was a breach of Article 13(2) of the Polish Act of 26 January 1984 on Press law – APL – (in Polish: ustawa Prawo prasowe), Journal of Laws (Dziennik Ustaw) No. 5, item 24, with subsequent amendmets.

One cannot publish in the media personal information and images of individuals, against whom there is an ongoing preparatory proceedings or court proceeding as well as personal information and images of witnesses, wounded and hurt, unless these persons agree to it.

The District Court in Kraków in its judgment case file I C 1050/09 dismissed the lawsuit. The Court ruled that a news report that merely mentions an individual’s involvement in a criminal proceeding does not constitute a violation of the above mentioned regulations on Press Law, the rule of innocence, or journalism ethics.

Personal interest, case I ACa 544/10

March 22nd, 2011, Tomasz Rychlicki

A critical article was published in a paper magazine entitled “Forum Akademickie”. It concerned one of the scientist from the University of Opole. Some offensive comments appeared also at magazine’s online forum. These entries were removed after the administrator received a notice from the researcher. There was another offensive entry published on 30 November 2008, but on the same day it has been removed by a site administrator. The researcher sued the editor for allowing for the publication of inaccurate and defamatory comments which in consequence infringed on his personal interests. The District Court in Lublin dismissed the claim as unjustified. The Court held that according to regulations included in Article 14 and 15 of the PSEM the defendants cannot be held responsible because they prevented the access to questioned data/entries. The plaintiff appealed.

The Appellate Court in Lublin in its judgment case file I ACa 544/10 held that defendants should be held liable because they provided a website that was used for discussion and exchange of different views and they posted also a warning message about the moderation or deletion of entries that will not fit for certain rules, although according to the Court they were not obliged to do so, but they also employed for this purpose a person whose duty included monitoring the entries and the removal of those that were posed not in accordance with law and social norms. Therefore, The Court ruled that defendants had knowledge of illegal entries. As a result, they were responsible for failing to remove them without delay and to do so only after many months, at the request of the plaintiff.

The Court ordered the defendants (the editor of the magazine and its publisher) to publish under the article the statement of apology and to pay jointly 5.000 PLN to charity. The judgement is not final.

Personal interest, case II CSK 431/10

February 21st, 2011, Tomasz Rychlicki

Polish pop-singer Dorota Rabczewska sued Polish rapper Mieszko Sibilski for the infringement of her personal interests. She demanded an apology and 20.000 PLN as compensation for the damage she suffered. Rabaczewska lost the case in the first instance. The Court of second instance ordered Sibilski to publish an apology for the infringement of her dignity in the form of an online ad that has to be placed for 7 days at Polish portal site Onet.pl. The calculations showed that such action would cost around 32.000.000 PLN. Sibilski lodged an cassation complaint.

The Supreme Court in its order of 2 February 2011 case file II CSK 431/10 held that the court cannot order an apology for the violation of dignity, if the plaintiff requested for the protection of other personal interests, in this case her reputation and right to privacy. Moreover, the Supreme Court ruled that the second instance court improperly ordered the form of publication of an apology because it did not take into account technical requirements and the costs associated with it. The Supreme Court reversed the judgment and sent the case back for reconsideration.

Personal data protection, case II SA/Wa 1212/10

February 4th, 2011, Tomasz Rychlicki

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.

Press law, case I CSK 664/09

November 25th, 2010, Tomasz Rychlicki

In 2001, the Polish magazine “Polityka” published the article entitled “Po pierwsze Sandauer”. The author quoted a surgeon who operated Adam Sandauer, the president of Primum Non Nocere association, in which he had said that instead of more surgery Mr Sandaur needed a psychiatrist. The author quoted other doctors, who spoke about Sandauer being in conflict with the medical community and suggested that he is in bad mental condition. He quoted passages of Sandauer’s private mail to confirm this statement. Mr Sandauer sued and the case went through all instances. The Supreme Court in its judgment of 17 listopada 2010 case file I CSK 664/09 held that publication of private correspondence without the permission of the author, and especially when it concerns the sphere of his or her private life, such as health, is unlawful.

Personal interest, case XXIV C 760/09

October 26th, 2010, Tomasz Rychlicki

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.

Social networking sites, case I A Ca 1202/09

March 3rd, 2010, Tomasz Rychlicki

Nasza-Klasa.pl website is a very popular Polish social networking service bringing together classmates. It provides its users with a possibility to contact and search for old friends. In 2008, an unknown person created an account for the name of Dariusz B., The fake profile included his personal data: name, place of residence, phone number, age and images. This account was set without the knowledge and the consent of Dariusz B. Many offensive comments were sent from this fake account to other users of the portal. These comments provoked negative emotions and responses from its recipients. Dariusz B. and his wife, tried to apologize to every person they met. Dariusz B. was also forced to change his phone number, and met with harsh comments from friends, and especially from the strangers. Maria B. – wife of Dariusz B. contacted Nasza-Klasa.pl by e-mails with the request to remove or to block the fake account. When it did not bring any results, they brought a lawsuit against Nasza-Klasa.pl.

Nasza-Klasa.pl was found responsible by both the District and the Apellate courts because it has not removed, or at least not immediately blocked the fake account, created in the name of Dariusz B., thereby making violations of his personal interests possible.

The Appellate Court in Wrocław in a judgment of 15 January 2010, case file I A Ca 1202/09, DOC file, ruled that nature of the infringement performed by Nasza-Klasa.pl was to allow a third party to encroach on personal rights of Dariusz B., by not fulfilling its obligations under the Polish Act of 18 July 2002 on Providing Services by Electronic Means – PSEM – (in Polish: ustwa o świadczeniu usług droga elektroniczną), Journal of Laws (Dziennik Ustaw) No. 144, item. 1204, as amended.

Article 14
1. 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.

2. A Service provider who has received the official notification of an illegal character of the stored data that was supplied by the customer, and prevented the access to the data, shall not be liable to the customer for damages resulting from preventing access to such data.

3. A service provider who has received credible information of the illegal character of the stored data supplied by the customer and prevented access to the data, shall not be liable to the customer for the damage resulting from preventing access to such data, if it has immediately notified the customer of the intention to prevent access to data.

According to the Court, Nasza-Klasa.pl did not immediately block, and then delete the questioned fake account. Therefore, it forced Dariusz B. to bear a humiliating behavior caused by another person, which in consequence violated his serenity, good mood, sense of personal dignity, i.e. his personal interests. However, the Court did not agree with the argument that the standard of conduct, professionalism, requires the administrator to filter and delete statements that violate the law or may violate the law in an objective view, without a prior notice regarding such event. Putting such a requirement would be contrary to the provisions of Articles 14 and 15 in connection with Article 12 of the PSEM.

Personal interest, case I ACa 1176/09

February 26th, 2010, Tomasz Rychlicki

In the summer of 2008, a popular Polish tabliod Super Express published a nude picture of Justyna Steczkowska that was taken on a Turkish beach during her holidays. The singer sued the publisher for the violation of privacy interest. The Appellate Court in Warsaw in a judgment of 24 February 2010, case file ACa 1176/09, awarded Justyna Steczkowska 80000 PLN compensation and ordered Super Express to publish an apology. The court held that there is no implied consent to the intrusion into privacy, even though it was the hotel’s private beach and a photographed person wasn’t too cautious.

Criminal law, case P 10/06

December 13th, 2006, Tomasz Rychlicki

The Constitutional Tribunal in its judgment of 30 October 2006 case file P 10/06, examined the preliminary question referred by a Regional Court in Gdańsk concerning the provision of Articles 212 § 1 of 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 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 Regional Court and different NGOs claimed that the sufficient protection against defamation may be realized within the relevant provisions of the civil proceedings, in particular, the system of protection of personal rights/interests, provided in the Civil Code. The Regional Court alleged that the penalization of the defamation limits the constitutional freedom of expression as set forth in Articles 14 and 54 of the Polish Constitution in a way which is not necessary in the democratic State and, therefore, it constitutes a violation of the principle of proportionality, guaranteed in the Article 31(3) of the Constitution.

Article 14
The Republic of Poland shall ensure freedom of the press and other means of social communication.

Article 31
1. Freedom of the person shall receive legal protection.
2. Everyone shall respect the freedoms and rights of others. No one shall be compelled to do that which is not required by law.
3. Any limitation upon the exercise of constitutional freedoms and rights may be imposed only by statute, and only when necessary in a democratic state for the protection of its security or public order, or to protect the natural environment, health or public morals, or the freedoms and rights of other persons. Such limitations shall not violate the essence of freedoms and rights.

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.

The Constitutional Tribunal did not uphold the aforementioned argumentation and ruled that the challenged provisions of the Criminal Code are in conformity with the constitutional principle of proportionality. The criminal-legal protection of private life and good reputation is necessary in democracy and may not be sufficiently substituted by the civil-legal provisions. Judges Ewa Łętowska, Marek Safjan i Mirosław Wyrzykowski presented dissenting opinions. Those judges focused mainly on the solution adopted in Article 213 § 2 of the CRC.

Article 213. § 1. The offence specified in Article 212 § 1 is not committed, if the allegation not made in public is true.
§ 2. Whoever raises or publicises a true allegation in defence of a justifiable public interest shall be deemed to have not committed the offence specified in Article 212 § 1 or 2; if the allegation regards private or family life the evidence of truth shall only be carried out when it serves to prevent a danger to someone’s life or to prevent demoralisation of a minor.

The Tribunal ruled in favour of the private life and good reputation. Such conclusion is justified in the axiology of Article 30 of the Polish Constitution.

Article 30
The inherent and inalienable dignity of the person shall constitute a source of freedoms and rights of persons and citizens. It shall be inviolable. The respect and protection thereof shall be the obligation of public authorities.

The latter argument, namely the strict link between individuals’ privacy and human dignity, leads to the conclusion that the protection of privacy is in the interest of not only a person whose privacy has been violated, but also in the interest of the entire society. Hence, the protection of privacy and good reputation constitutes the public interest that needs to be taken into consideration in construing the system of anti-defamation protection mechanisms. The Tribunal ruled that defamation is a violation of the human dignity. The obligation of public authorities is to respect and protect human dignity which includes the need to ensure protection against infringement also by private entities. The Constitutional Tribunal transposed the aforementioned argumentation into the field of comparison of the criminal liability, which is aimed at repression, and civil liability, which is aimed – in principle – at compensation.

In the Tribunal’s opinion, the constitutional requirements concerning the protection of privacy and good reputation impose on the legislator the duty to create mechanisms which would take into account not only the need to satisfy the victim of defamation (to compensate his or her harm), but also to the need to underline the social condemnation of such activities. The civil liability fulfils only first of these conditions. That is why there is a necessity – the necessity in a democratic State – to encompass the defamation with the scope of criminal law, since where a certain type of behavior is treated by the legislator as a criminal offence, it signifies that such a behavior constitutes a threat to public interest and not only to the rights and freedoms of victims.

These arguments led the Constitutional Tribunal to the conclusion that the challenged provision of the Criminal Code, penalizing the defamation of a person, does not violate the Constitution.