Archive for: Polish Regional Court

Copyright law, case I Ns 700/12

March 27th, 2015, Tomasz Rychlicki

Henryk Goldszmit, better known as Janusz Korczak, has died in the Nazi-Germany maintained concentration camp Treblinka in 1942. The very popular Old doctor was also the author of many children books. The copyrights to his literary legacy are governed by the Polish Book Institute. The exact date of his death is not precisely known, however, it was determined by historians as on 6 August 1942, but for obvious reasons no eyewitness could confirm that during court proceedings that were held after the war. The County Court in Lublin in its order of 30 November 1954 case file Ns 2460/53 considered Korczak’s death on 9 May 1946. Almost 4 years after the date on which it actually happened. Therefore, according to the provisions of the Polish copyright law, Korczak’s works will be available in the public domain as of January 1, 2017.

The Modern Poland Foundation operates the school library project called Wolne Lektury (Free Readings). These e-books are freely available on the Creative Commons licenses. Dissatisfied with the fact that Korczak’s works are not yet available in the public domain, the Foundation decided to submit to the Regional Court Lublin-Zachód the application case file I Ns 700/12 for a declaration of death, seeking to establish a proper date on 6 August 1942. This day is mentioned in a number of publications as the day of deportation of Korczak and his students to the Nazi-German camp in Treblinka.

The Regional Court in Lublin in its judgment of 27 March 2015 case file I Ns 700/12 ruled that Janusz Korczak died in 1942 and not 1946. The Court decided that the most likely date of death was August 7, 1942. The judgment is not final yet.

See also “Polish regulations on copyright” and “Polish case law on copyright“.

Trade mark law, case VI Kp 84/14

September 1st, 2014, Tomasz Rychlicki

The Regional Court in Szczecin in its decision of 18 June 2014 case file VI Kp 84/14 ruled that the provisions of Article 305 of the Polish Act of 30 June 2000 on Industrial Property Law – IPL – (in Polish: ustawa Prawo własności przemysłowej), published in Journal of Laws (Dziennik Ustaw) of 2001 No 49, item 508, consolidated text on 13 June 2003, Journal of Laws (Dziennik Ustaw) No 119, item 1117, that provides that anyone marking goods with a counterfeit trade mark, registered trade mark for which one does not have the right to use, for the purpose of introducing them on the market or anyone who is making a turnover of goods bearing such trade mark, shall be liable to a fine, limitation of freedom or imprisonment for a period of up to two years, does not apply to services for which a trade mark was registered for. The Court noted that the definition of goods in the IPL also covers services, however, incriminated actions that are subject to the provisions of Article 305 of the IPL, were defined very narrowly and does not apply to trade mark use in advertising services. According to the Court, this view is shared by legal commentators who agreed that the protection provided in Article 305 of the IPL only covers the rights to mark the goods by the entitled person. Based on the principle of guarantee in the criminal law, the Court did not agreed for the analogy in order to extend the protection. The principle of the guarantee of law provides that those who do not violate the rules of law will not suffer negative consequences from the state. This function is of particular importance in the system of criminal law. By establishing sanctions for violation of, or for exposure of certain goods (criminalization) the legislator expresses its will to secure respect for such interests (the protective function of law), but also ensures (guarantee function of law) those who did not commit a criminal act, that they will not be held criminally responsible. The Court added that due to the nature of the service, it can not be introduced to the market, or be subject to market turnover.

Criminal law, case II K 1331/10

March 20th, 2013, Tomasz Rychlicki

Odsiebie.com was a hosting website operated by couple of administrators that were charged by the Prosecutor for fencing of computer programs and aiding in their disposal. The owners were detained for 24 hours and the domain name was locked. The Prosecutor Office was informed about alleged criminal activity by the employees and lawyers representing ZPAV i FOTA – two big Collecting Societies in Poland.

The Regional Court for Wrocław Śródmieście, II Wydział Karny in its judgment of 6 March 2012 case file II K 1331/10 acquitted administrators of all charges. The appeal filed by the Prosecutor Office was dismissed by the District Court in Wrocław in its judgment of 6 February 2013.

Spam law, case II W 572/12

February 5th, 2013, Tomasz Rychlicki

The Regional Court in Dzierżoniów in its judgment of 9 January 2013 case file II W 572/12 sentenced a Polish citizen for the fine in a sum of 300 Polish złoty for sending unsolicited e-mail to two persons. This case was based on the indictment afforded for in the Article 24 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. Anyone, who transmits by electronic communications means unsolicited commercial information, should be liable to fine. The prosecution of this offence is conducted on the request of the harmed party. Recent amendments to the Polish Telecommunication law introduced also new anti-spam provisions to the PSEM. As of 22 January 2013, sending unsolicited commercial information addressed to the specified recipient, who is a natural person, by electronic communications means, in particular electronic mail is prohibited. These amendments made the ban on sending unsolicited commercial information on whether the spam recipient is a natural person. Previous provisions of the PSEM did not provide such prerequisite.

Criminal law, case II K 342/12

January 22nd, 2013, Tomasz Rychlicki

A Polish citizen was charged by the Prosecutor Office for downloading from the Internet of 10 songs in MP3 file format in order to gain material benefits. The Regional Court in Mr.gowo in its judgment of 5 December 2012 case file II K 342/12 sentenced the defendant to imprisonment for six months and a fine, and suspended the execution of this judgment for three years. The Court ruled total penalty of 8 month of imprisonment and a fine, because the defendant was also charged for an illegally obtained copy of the Windows XP OS.

Criminal law, case IV K 875/07

September 19th, 2012, Tomasz Rychlicki

A person, who was working in a call center of one of the Polish telecommunication company, has used social service offered by that company and sent to subscribers of the telecommunications company a text message in which he made derogatory statements regarding another person. This person felt insulted and brought private charges based on the provisions of Article 212 § 2 of the Criminal Code – CRC – (in Polish: Kodeks Karny) of 6 June 1997, published in Journal of Laws (Dziennik Ustaw) No 88, item 553, with subsequent amendments.

The Regional Court for Warszawa City IV Criminal Division in its judgment of 5 July 2012 case file IV K 875/07 sentenced the accused person to a fine. The Court held that the sent message humiliated this person in public and exposed to the loss of trust necessary for the conduct of his business. The case was heard on 33 hearings.

Criminal law, case II W 363/12

August 30th, 2012, Tomasz Rychlicki

A person who used a nickname “Leon z gazowni” wrote derogatory comments on Internet forum regarding the death of Polish soldiers in Afghanistan. Jacek Żebryk, a Polish soldier who served in Afghanistan, and whose friend died on the mission, informed the Prosecutor Office in Białogard about the possibility of committing a crime. The Prosecutor located the computer of Jerzy W. and charged him based on the provisions of Article 52a of the Polish Code of Offences – PCO – (in Polish: Kodeks wykroczeń) of 20 May 1971, published in Journal of Laws (Dziennik Ustaw) of 1971, No 12, item 114, with subsequent amendments.

Whoever:
1) publicly incites to commit a crime or tax offense,
2) publicly incites to violent action in order to prevent an act that constitutes source of universally binding law of the Republic of Poland,
3) publicly applauds a crime,
if coverage of the act or its effects were not significant – shall be liable to arrest, restriction of liberty or a fine.

The Regional Court in Środa Wielkopolska in its judgment case file II W 363/12 found the person guilty and fined him 100 PLN. The case was decided in the prescriptive procedure in criminal proceedings. Jerzy W. failed to appear at the hearing. He also did not file an appeal, so the judgment became final after 7 days.

Access to public information, case XVI K 112/11

May 18th, 2012, Tomasz Rychlicki

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

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

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

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.

Civil law, case VI C 143/11

March 24th, 2012, Tomasz Rychlicki

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

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

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

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

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

Criminal law, case XI W 1497/11/P

March 15th, 2012, Tomasz Rychlicki

The publisher of histmag.org website requested its users to donate money via PayPal or similar services, in order to raise funds for the functioning of this history site. An anonymous user made ​​a complaint to the former Polish Ministry of Internal Affairs and Administration, now Ministry of Interior, claiming that this action constituted an illegal public money collection, which is prohibited according to the provisions of Article 56 § 1 of the Polish Code of Offences – PCO – (in Polish: Kodeks wykroczeń) of 20 May 1971, published in Journal of Laws (Dziennik Ustaw) of 1971 No 12, item 114, with subsequent amendments.

Whoever, without the required permit or in violation of its conditions, organizes, or holds a public collection of donations, shall be subject to a fine.

According to the Polish Act of 5 March 1933 on Public Collections, any public collections of donations in cash or in kind, for a pre-determined goal, requires prior authorization from the authority. This permit should be granted as an administrative decision. The Regional Court in Kraków in its warrant ruling found the publisher guilty. The publisher filed objections to this judgment.

The Regional Court for Kraków-Podgórze in Kraków, Wydział XI Karny in its judgment of 6 February 2012 case file XI W 1497/11/P acquitted the publisher of any charges. The court ruled that the public collection was conducted by receiving direct wire transfers or via PayPal. The provisions of the PCO and the definition of public collection included in the Act on Public Collections refers to public collections of cash or in kind, and are not applicable to electronic transfers.

Criminal law, case II Ka 269/11

November 14th, 2011, Tomasz Rychlicki

Maria S. was charged by the Prosecutor based on the provisions of Article 278 § 2 of the Polish Criminal Code – CRC – (in Polish: Kodeks Karny) of 6 June 1997, published in Journal of Laws (Dziennik Ustaw) No 88, item 553, with subsequent amendments.

Article 278. § 1. Whoever, with the purpose of appropriating, wilfully takes someone else’s movable property shall be subject to the penalty of deprivation of liberty for a term of between 3 months and 5 years.

§ 2. The same punishment shall be imposed on anyone, who without the permission of the authorised person, acquires someone else’s computer software, with the purpose of gaining material benefit.

Such situation happened because, during the investigation, the Police found on her laptop two shareware programs Win ZIP 8.1 and Win Rar 3.0. This software was valued 113,89 PLN each, and the period of time to buy a license already expired. Maria S. explained that she wasn’t aware that she had illegal software installed. She argued that both programs were installed by computer service technicians during the repair of her laptop. This statement was confirmed by a witness expert testimony. The expert said that both programs were installed at the same time, when the operating system was also configured. The expert noted that this is typical practice of computer services personnel who install software needed to install other programs, and do not remove it after the completion of repairing. At the time of installation of both programs, they were legal.

The Regional Court in Biłgoraj acquitted Maria S. of all charges. The Court found that she did not act in order to gain material benefits and she had no full awareness that her behavior lead to the obtainment of computer programs without the consent of the person entitled. The Prosecutor appealed. He argued that Maria S. was guilty because she wasn’t careful enough, and she did not buy both licenses immediately.

The District Court in Zamość in its judgment case file II Ka 269/11 upheld the verdict. The Court ruled that issues of normal or increased diligence or care that should appear in case of expired trial or shareware software, do not belong to the category of the constituent elements of the alleged offense.

Civil law, case II Ca 26/11

May 9th, 2011, Tomasz Rychlicki

Andrzej J., a Polish farmer, ordered his 17-year-old son to put up for sale a tractor. He told him to use Allegro.pl, the most popular Polish auction website. It was one of the first auctions on the Internet for both of them. However, his son, who started the action, did not specify a minimum selling price. The auction was attended by six interested parties. The highest offer of 11.000 PLN bid by Adam S., let him to win the auction. Andrzej J. refused to hand over the vehicle, claiming that the winning price was too low. He argued that his son is minor and although he received his father’s command, he exceeded the scope of the mandate, because despite the clear indication, he did not select in the options, the minimum price that should be set to 38.000 PLN (it was set at the last day of the auction at the suggestion of the mother). Andrzej J. claimed that he was not aware that such transaction can be concluded below the minimum price, and he hadn’t the possibility of withdrawing the offer. He argued that he acted under the influence of the error in fact, therefore, he should be released from the conclusion of the agreement.

The District Court in Łuków held that the claim for a vehicle at the price of 11.000 is fully justified. The Court pointed to the wording of Article 70¹ of the Civil Code.

Article 701. § 1. A contract may be concluded by means of an auction or tendering.
§ 2. An announcement of an auction or tendering shall specify the time, place, object and terms of the auction or the tendering, or to indicate how such terms are available.
§ 3. The announcement and the terms of the auction or the tendering may be changed or revoked only when it has been stipulated in their contents.
§ 4. Since the moment of making the terms available and making the bid respectively by an organizer and the bidder according to the announcement of the auction or tendering, they shall proceed in accordance with the provisions of the announcement, likewise the provisions of the terms of auction or the tendering.

In this case, the terms for auctions and the procedures for the conclusion were established by Allegro in its Terms of Service, which were both accepted by the seller and the buyer. According to the terms of Allegro, the seller can make changes to the content of the auction only in three minutes after the auction begins. The Court ruled that the son of Andrzej J. did not act as his proxy, but as a messenger, whose role was purely technical, he had to enter some data on an auction website, therefore he could not be regarded as representative based on provisions of the Polish Civil Code.

Article 95. § 1. Barring the exceptions specified in statutory law or resulting from the character of a given act in law, an act in law may be performed through a representative.
§ 2. An act in law performed by a representative within the limits of the authorization shall have direct effects for the person represented.

Article 96. The authorization to act on behalf of another person may be based on statutory law (statutory representation) or on the declaration by the person represented (power of attorney).

The District Court in Lublin in its judgment case file II Ca 26/11 upheld a lower court’s judgment. See also “Civil law, case I ACa 295/10“.

Criminal law, case II Kp 366/10

March 11th, 2011, Tomasz Rychlicki

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

Access to public information, case V Ca 2388/10

November 9th, 2010, Tomasz Rychlicki

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.

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.

Computer crime, case II K 127/10

October 21st, 2010, Tomasz Rychlicki

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 the provisions of Article 287 § 1 of the Criminal Code – CRC – (in Polish: Kodeks Karny) of 6 June 1997, published in 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.

Computer crime, case XII K 32/10

October 20th, 2010, Tomasz Rychlicki

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.

Computer crime, case V KK 391/11

September 20th, 2010, Tomasz Rychlicki

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 private charges against Mr Kasprowicz on the basis of Article 212 § 2 of the Criminal Code – CRC – (in Polish: Kodeks Karny) of 6 June 1997, published in 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 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 Supreme Court in its judgment of 16 October 2012 case file V KK 391/11 decided that opinions published on websites are not different from these expressed in other media. Therefore, the assessment on the infringement of personal rights should be not applied differently.

E-access to public information, case I C 19/10

April 29th, 2010, Tomasz Rychlicki

Grzegorz W. made a request for access to minutes of meetings of the audit committee of the city council. He asked that the information was sent to his home address. The Municipality and City Czerwionka – Leszczyny replied that it is possible to get acquaint with the requested documents in their virtual version that was published in the Bulletin of Public Information. There was also an option to obtain a photocopy or computer file upon application and payment of a fee based on the provisions of Article 1(1) of the Polish Act of 6 September 2001 on Access to Public Information – API – (in Polish: Ustawa o dostępie do informacji publicznej), published in Journal of Laws (Dziennik Ustaw) No. 112, item 1198, with subsequent amendments.

Each information on public matters constitutes public information in the understanding of the Act and is subject to being made available on the basis of principles and under the provisions defined in this Act.

Grzegorz W. informed the Municipality and City Czerwionka – Leszczyny that he expects to receive the documents in the form of photocopies. All documents were sent along with the request for payment based on the rules issued by the Mayor on charges for making the public information available. Grzegorz W. refused to pay and urged the Mayor to amend the ordinance in question, as it was incompatible with the provisions of Articles 7(2) and 15(2) of the API.

Article 7. 1. Making public information available takes place by means of:
1) announcing public information, including official documents, in the Public Information Bulletin, mentioned in Article 8,
2) making it available, mentioned in Articles 10 and 11,
3) entrance into the meetings of the bodies, defined in Article 3, it. 1, point 3, and making the materials available, including the audio-visual and tele-communicating, documenting these meetings.
2. Access to public information is free, with the stipulation of Article 15.

Article 15. 1. If as a result of making public information on the petition, defined in Article 10, it. 1, the entity obliged to do this, is to incur the additional costs connected with the method defined in the petition of a method of making it available or necessity to transform the information in the form pointed in the petition, this entity is entitled to the payment from the petitioner covering these costs.
2. The entity, defined in it. 1, within 14 days of submitting the petition, shall notify the petitioner of the amount of the payment. Making the information available in accordance with the petition takes place after the expiration of the period of 14 days of notifying the petitioner unless the petitioner makes within this period the change in the petition in the scope of method and form of making this information available or withdraw the petition.

After very active exchange of letters and calls between both parties, the case went to the court. On 7 October 2009, the Referee in the Regional Court Katowice Wschód in Katowice made the order in the admonition proceedings case file I Nc 1140/09/13 and adjudged Grzegorz W. to pay 14,58 PLN plus costs of the proceedings. Grzegorz W. filed an objection against the order and the Municipality and City Czerwionka – Leszczyny sustained their claims. The Regional Court Katowice Wchód in Katowice in its judgment of 27 April 2010 case file I C 19/10 rejected all claims filed by the Municipality and City Czerwionka – Leszczyny. The Court held that Article 7(2) of the API introduced the principle of free access to public information. All exceptions to this rule are provided in Article 15(2) of the API. There are only two exceptions to the principle of free access. The first concerns the method (form) of making the information available and the second concerns a situation in which additional costs are associated with the transformation of the requested information. According to the Court, the forms should be understood by both the particular shape of the information held, which requires additional effort (for instance digitization and processing of documents held by the entity) and as a special way of making such information available. The Court also noted that the entity making the information available is obliged to ensure the possibility of copying of public information or its printout or sending the public information or transferring it to the appropriate, commonly used information carrier. The Court held that the Municipality and City Czerwionka – Leszczyny should also demonstrate that it had incurred additional costs. Finally, the Court also held that making the price-lists and introducing flat-rate charges for making the public information available, violates the provisions of the API because each price-list/tariff is a form of lump sum and this does not correspond to the essence of the costs actually incurred. Article 15(1) of the API indicates the additional costs and therefore the costs that were actually incurred by a given entity.

See also “Polish case law on e-access to public information“.

Press law, case VII Ka 715/09

March 7th, 2010, Tomasz Rychlicki

Two partners of a civil partnership have been accused that in the period from 10 April 2002 to 4 June 2006, they have been acting jointly and in the agreement, and they have been publishing without the adequate and propert registration a periodical entitled “www.bielsko.biala.pl” that was available in the Internet, i.e., they were accused of commiting an offense under Article 45 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.

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.

The Prosecutor from the Regional Prosecution Office in Bielsko-Biala wrote clearly in the indictment act file 2 Ds. 196/08/MŁ, that Article 45 of the APL protects freedom of press.

The Regional Court in Bielsko-Biała in a judgment of 2 June 2009, case file IX K 2011/08, found them guilty. The defendants appealed.

The District Court in Bielsko-Biała, VII Criminal Appeals Division, in a judgment of 14 January 2010, case file VII Ka 715/09, has overturned the earlier sentence and discontinued the criminal proceedings. The court agreed with the court of the first instance that the accused persons commited the offence, however, the court also ruled that the degree of social harmfulness of their activity was minimal. By performing the publishing activities without the registration, both defendants did not cause anyone any harm.

What is more interesting, on 18 April 2008 both partners and later the accused persons, have applied for the registration of press activity/publishing in the form of a website available at www.bielsko.biala.pl. The request contained information that the website is updated daily. The District Court Civil Division I, in a decision of 5 June 2008, case file NS Rej. Pr. 12/08 k. 26-27, ordered the entry of the “www.bielsko.biala.pl” press title into the Register of Daily Newspapers and Periodicals.

See also “Press law, case VI Ka 409/07” and “Press law, case II K 367/08“.

Computer crime, case V K 1595/08

February 9th, 2010, Tomasz Rychlicki

Arnold Buzdygan brought a private accusation before the Regional Court for Wrocław Śródmieście V Criminal Division against Olgierd Rudak. The indictment was based on the provisions of Articles 212 § 2 and 216 § 2 of the Criminal Code – CRC – (in Polish: Kodeks Karny) of 6 June 1997, published in 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.

Article 216
§ 1. Whoever insults another person in his presence, or though in his absence but in public, or with the intention that the insult shall reach such a person,
shall be subject to a fine or the penalty of restriction of liberty .
§ 2. Whoever insults another person using 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 one year.

The court in Wroclaw was obliged ex officio under Article 35 § 1 of the Criminal Proceedings Code – CRPC – (in Polish: Kodeks Postępowania Karnego) of 6 June 1997, published Journal of Laws (Dziennik Ustaw) No 89, item 555, with subsequent amendments, to examine its jurisdiction and if found otherwise, to refer the case to the court with the proper one. The Court in Wrocław held that pursuant to Article 31 § 1 of the CRPC, the jurisdiction is where the offense was committed (the teritorial jurisdiction). Buzdygan claimed that the offense was commited in the article entitled “Trolls scour in the Net” which was published in the Polish magazine Przekrój of 11 November 2007, in addition the allegedly defamatory content was broadcasted by TV stations such as TVN, Polsat and TVP, in their news and in the Internet. Judge Jolanta Pol-Kulig had to decide on the location of the Internet.

[b]oth the editorial office of Przekrój and the abovementioned TV stations and the Internet are located in Warsaw, one should consider that the commitment of a crime to the detriment of the private prosecutor was performed in that place.

The Court in its order of 31 December 2008 case file V K 1595/08 referred the case to the Regional Court for Warszawa Śródmieście II Criminal Division. Interestingly, the Court in Wrocław did not consider that the alleged offense was not committed.

See also “Personal rights, case I ACa 949/09“.

E-proceedings in Poland

January 18th, 2010, Tomasz Rychlicki

On 1 January 2010 the provisions of the Act of 9 January 2009, amending the Act – Civil Proceedings Code and other acts, Journal of Laws (Dziennik Ustaw) No 26, item 156, came into force. This act introduced articles 50528 – 50537 which added to the CPC, in the First Book – the Trial, the title VII. Separate proceedings, Chapter VIII. Electronic proceedings, Chapter 1 Electronic admonition proceedings. In addition, the series of implementing regulations were published in the Journal of Laws (Dziennik Ustaw) on 31 December 2009, No 226. These regulations include inter alia:
– The regulation of the Minister of Justice of 28 December 2009 on the procedure of setting up an account and the way of using of electronic signatures in the electronic admonition proceedings,
– The regulation of the Minister of Justice of 28 December 2009 on the procedure of electronic serving in the electronic admonition proceedings,
– The regulation of the Minister of Justice of 28 December 2009 on the method of electronically lodging of pleadings in the electronic admonition proceedings,
– The regulation of the Minister of Justice of 28 December 2009 on the action of the court relating to the enforceability of a judicial decision rendered in the electronic admonition proceedings.

So, since 1 January 2010, XVI Civil Department of the Regional Court in Lublin is formally and officialy the first Polish e-court.

The electronic admonition proceedings were introduced as a separate proceeding – having the nature of summons for payment – in cases where the facts are not complicated and there is no requirement of the evidence proceedings. The suit in the electronic admonition proceedings may be filed by a natural person or a person acting on behalf of the plaintiff (the agent, legal representative) who also has an account enabled at www.e-sad.gov.pl website and a valid certificate to create the electronic signature. The plaintiff’s pleadings have to be lodged electronically to produce legal effects as provided by the law with regard to pleadings filed in the court.

Electronic versions of the statement of claim and other pleadings may be signed with a qualified certificate issued by a Qualified Certification Center. A person who does not have a valid qualified certificate should request a certificate from the Certification Center EPU and download the certificate, before filing a suit.

The suit should also include plaintiff’s number in the Universal Electronic System for Registration of the Population – PESEL – (in Polish: Powszechny Elektroniczny System Ewidencji Ludności) which is the national identification number used in Poland since 1979 or Tax Identification Number – NIP – (in Polish: Numer Identyfikacji Podatkowej) of the plaintiff other than a natural person, if the plaintiff is obliged to have one, and the number of the National Court Register (in Polish: Krajowy Rejestr Sądowy), or the number in the other appropriate register or other records. This is much stronger requirement when it comes to e-pleadings because such a requirement does not apply to actions brought in writing.

The plaintiff should indicate the evidence to support his/her claims in the petition. The evidence is not attached to the petition.

Court fees in the electronic admonition proceedings are paid only electronically via the payment service provider. Activities during the electronic admonition proceedings may be exercised by court’s referendary (division official).

The ruling issued in the electronic admonition proceedings is deemed as the writ of execution. The enforcement clause is only left in the computer system. After the decision issued during the electronic admonition proceedings becomes final, the enforcement clause is issued ex officio. The plaintiff, or person acting on behalf of the plaintiff, may submit a request for execution of the decision to the selected bailiff through the communications system of the e-court based on the electronic writ of execution received.

Computer crime, case II K 320/07

December 14th, 2009, Tomasz Rychlicki

Do you remember Cohen v. Google, Inc., 2009 WL 2883410 (N.Y. Sup. Ct. Aug. 17, 2009)? If not, just see this short description available at citmedialaw.org website. And it looks like we will have a similar case in Poland. The Polish court wants Google to reveal its users data.

In the articled entitled “Google ma ujawnić e-maile“, the Polish newspaper Rzeczpospolita reports recent case of Jakub Świderski. Mr Świderski is a former councillor of Sopot town and a party of a criminal suit brought against him based on a private accusation/charge by Jacek Karnowski, the President of Sopot, (who has been served with seven corruption charges) and his former deputy Cezary Jakubowski. Karnowski and Jakubowski argue that they were insulted and offended by statements allegedly published by Świderski in the onepage magazine “Obserwator sopocki” (in English: “Sopot’s Observer”) that was distributed during local elections in 2006. They also claim that their “public confidence” was jeopardized by Świderski’ actions.

“Obserwator sopocki” was published only three times in 2006. Authors of published texts suggested illicit trade premises and municipal corruption. Karnowski said he had been particularly offended by a photograph depicting his caricature with the envelope in his hand suggesting that he is taking bribes.

Mr Karnowski argues that Świderski was the publisher of “Obserwator sopocki”. The problem is that it has to be proven. The newspaper was distributed on the streets, it was not registered as the press, and the authors wrote under pseudonyms/nicknames: takata1, rzeźniksopocki, wasp. Świderski did not admit that these were his nicknames. So far, the only evidence Karnowski had, was a statement issued by Świderski in which he said “To ja jestem głównym “Obserwatorem”” (in English: “I am the leading “Observer””).

The secret trial before the Regional Court Gdańsk-Południe, case file II K 320/07, was started three years ago. Świderski was charged based on privisions of article 212 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.

A few months ago Jakubowski and Karnowski requested the Court to issue an order for the disclosure of e-mail correspondence of Świderski. As Rzeczpospolita reports they asked the Court to exempt Google and Microsoft from the secrecy of correspondence, and to investigate by the Police of all IP addresses of persons, who corresponded with Świderski from July to November 2006. These are addresses registered at gmail.com and hotmail.pl.

Rzeczpospolita reports that Judge Ludwika Małkowska took into account the request of Karnowski to admit the evidence of “official secret information” and exempted Google Kraków (foreign controlled company whos parent company is Google). Judge Małkowska ordered Google Kraków to provide information on persons who registered e-mail addresses related to aforementioned nicknames, identities of all persons who have access to these accounts, from which IP addresses the correspondence was retrieved and what messages were sent to which of the e-mail addresses, together with their content. Judge Małkowska stated that in this case it is necessary to determine the person or persons responsible for the defamatory publications.

Press law, case II K 367/08

January 14th, 2009, Tomasz Rychlicki

The Regional Court in Słupsk in its judgment of 16 December 2008, case file II K 367/08 acquitted Leszek Szymczak from charges of publishing press material featuring criminal content that publicly incited its readers to commit offences. This case concerned posts that were published at the online forum of http://gazetabytowska.pl website (also accessible at http://gby.pl), which – according to the Public Prosecutor’s Office – included incitement to commit crime. Charges were based on Article 49a 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 amendments.

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.

In connection with the provisions of Article 255 of the Polish Criminal Code – 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.

The Court ruled that according to the provisions of Polish Press Law, Leszek Szymczak is the publisher and the editor, however the entries that were posted by visitors of his website did not constitute a press material. The appeal brought by the Prosecutor Office was rejected. See “Press law, case VI Ka 202/09“.

See also “Press law, case VI Ka 409/07” and “Press law, case IV KK 174/07“.

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 gby.pl. 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 gby.pl 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 gby.pl 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 gby.pl 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 gby.pl 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 gazetabytowska.pl 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 gby.pl, 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.

Discussion
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 gby.pl) 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 meinprof.de portal, a website used to evaluate professors of colleges and universities, and one of the evaluated professors who was dubbed on meinprof.de 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 gby.pl 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…

Conclusion
Since the gby.pl 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 http://mareksiwiec.blog.onet.pl 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).

P.S.
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“.

Footnotes
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 http://prawo.vagla.pl/node/7341#comment-4526 [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:// prawo.vagla.pl/node/7329 [Accessed November 10, 2008].
20. In a Polish daily newspaper, Rzeczpospolita, on September 6, 2007.
21. See http://www.president.pl, http://www.kprm.gov.pl/english, http:// www.rpo.gov.pl/index.php?s=3 [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 http://olgierd.bblog.pl/wpis,moj;nowy;organ;prasowy,7042.html [Accessed November 10, 2008].
24. See http://www.hfhrpol.waw.pl/precedens/pl/aktualnosci/sprawa-gazety-bytowskiej-w-tk.html [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.

Internet domains, case II C 1091/04

November 22nd, 2008, Tomasz Rychlicki

The Regional Court for Warszawa-Mokotów in its judgment case file II C 1091/04 ruled that according to Article 3851 § 1 the Civil Code – CC – (in Polish: Kodeks Cywilny) of 23 April 1964, Journal of Laws (Dziennik Ustaw) No. 16, item 93, with subsequent amendments, the provisions of a contract concluded with a consumer, which have not been individually agreed with him, shall not be binding thereupon, if his rights and duties have been stipulated in conflict with public decency and in flagrant violation of his interest (wrongful contractual provisions). According to Article 3853 § 1 of the CC, in the case of doubt, the wrongful contractual provisions should be, in particular these which exclude the jurisdiction of the Polish courts, or have the case decided by a Polish or a foreign conciliatory court or another authority, or force a decision in the case to be made by the court which has no local competence. According to the court’s decisions, the obligatory referral of a domain name dispute to a court of arbitration is a wrongful contractual provisions. For this reason Article 23 of the Domain Names Regulations issued by NASK, does not relate to or is not binding for consumers.

22. In case a third party initiates a legal action in the Arbitration Court against the Subscriber claiming that the Subscriber has infringed the rights of that person by entering into or performing the Agreement, the Subscriber shall submit to that Arbitration Court a duly signed arbitration clause to the Arbitration Court in due time stated in the summon to sign this arbitration clause.

23. The non-signing of the arbitration clause specified above shall result in the termination of the Agreement three months after the time stated to sign this arbitration clause, and this time limit shall be shortened to the date of the expiry of the calculating period based on the Price List if this date occurs before the end of the three month-period after the time stated to sign this arbitration clause. If the NASK has been informed during the time period specified above by the Arbitration Court about the delivery of the signed arbitration clause to that Court, the Agreement shall not be terminated.

Consequently, the termination of the contract based on these provisions could be regarded as invalid. The court also noted that such provisions could be challenged even in the course of a professional trade, as affecting the principle of contractual freedom and the right to a court.

See also “Polish case law on domain names“.

Trade mark law, case I KZP 8/08

July 1st, 2008, Tomasz Rychlicki

The Polish Supreme Court, the Criminal Law Chamber sitting in extended bench of seven Justices, in its judgment of 30 June 2008 case file I KZP 8/08 answered the question, whether the Polish legislator’s intent was to leave acts of purchasing counterfeit goods with impunity, or should such deeds be deemed as fencing according to provisions of Articles 291 and 292 of the Criminal Code – CRC – (in Polish: Kodeks Karny) of 6 June 1997, published in Journal of Laws (Dziennik Ustaw) No 88, item 553, with subsequent amendments.

This case concerned Małgorzata N. (publication of full personal data is not allowed in Polish criminal proceedings unless otherwise decided by a court) who was accused by the prosecutor of helping to sell clothes which were unlawfully bearing registered trade marks such as Everlast, Adidas, Puma and Nike. The charges were based on the article 291 of the CRC.

1. Whoever acquires property obtained by means of a prohibited act, or assists in its disposition, or receives such property or assists in the concealment thereof 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.

The court of the first instance (Regional Court) has ruled that Małgorzata N. was guilty of buying contested clothes in unfound place and time, and at the same time knowing that those products unlawfully bore registered trade marks. The Court sentenced the defendant for 50 daily rates of fine, each worth 40 PLN. Małgorzata N. appealed. Her attorney argued that the court of the first instance erred in the interpretation of article 291 of CRC which should be only applied in a case of the first purchase as it was decided by the Supreme Court in its judgment of 24 May 2005 case file I KZP 13/05. See “Trade mark law, case I KZP 13/05“. According to defendant’s attorney the Supreme Court’s interpretation excluded Małgorzata N.’s guilt because further turnover of such goods was beyond the scope of penalisation. Article 305(1) was amended of 31 July 2007 to adjust its provisions to every situation of “market turnover”.

Anyone marking goods with a counterfeit trade mark, registered trade mark for which one does not have the right to use, for the purpose of introducing them on the market or anyone who is making a turnover of goods bearing such trade mark, shall be liable to a fine, limitation of freedom or imprisonment for a period of up to two years.

The Supreme Court held that any behaviour which is not understood as “introduction to market” as defined in article 305(1) of the IPL (after amendments from 2007) and consisting of further market turnouver of goods bearing counterfeited trade marks is not a misdemeanour defined by article 291 and 292 of the PPC because it does not fulfill a trait of “property obtained by means of a prohibited act”.

Civil law, case II C 903/06

August 2nd, 2007, Tomasz Rychlicki

The Regional Court in Warsaw in its judgment of 6 February 2007 case file II C 903/06 held that Internet auctions organized by the popular websites such as allegro.pl and ebay.com are auctions as defined in article 70 ¹ of the Civil Code. Auction’s closing within the meaning of the Civil Code is a statement generated by the system or by auction’s organizer and sent to the bidder which has submitted the best offer. This message should be treated just as a statement of will of the seller who accepted the offer. It means that the contract takes effect not due to the passage of time, but precisely upon a receipt by the bidder of seller’s statement of acceptance of his offer.

Access to public information, case V Ca 454/07

July 30th, 2007, Tomasz Rychlicki

Sergiusz Pawłowicz who was also the leading programmer of Janosik project, went the same administrative proceedings as the ISOC Poland. See “Access to public information, case OSK 600/04“. At the final stage the Supreme Administrative Court dismissed Sergiusz’s complaint on the decision of the Voivodeship Administrative Court case file II SAB/Wr 72/02, recognizing that the proper course shall be a civil action.

Sergiusz filed a complaint requesting the civil court to order ZUS to disclose specification of KSI MAIL protocol being public information. The Regional Court in Warszawa in its judgment of 8 December 2006 case file XVI C942/04 ruled that publication of the protocol that is used by Płatnik software will not affect in any way the integrity of safety of data sent by this software. Therefore all arguments raised by ZUS with regard to data security were unfounded. The Court also held that ZUS did not prove that the protocol of KSI MAIL is protected by copyrights that belongs to Prokom Software S.A. or whether Prokom received any patent covering this protocol. As for the argument that ZUS’s obligations regarding confidentiality of information about technologies used in Płatnik and its source code, which resulted from the agreement between ZUS and Prokom, the court held that according to the obligation to disclose public information as provided in the Article 13 of the Polish Act of 17 February 2005 on the Informatization of Entities Performing Public Tasks – IEPPT – (in Polish: ustawa o informatyzacji działalności podmiotów realizujących zadania publiczne), published in Journal of Laws (Dziennik Ustaw) No 64, item 565 as amended, the provision of the agreement as a ius dispositivum, may not impose negative consequences on Sergiusz. The court also held that the use of the requested public information and legal interest that Sergiusz and its legal representative derrived from the social interest was beyond the scope of the whole dispute. Simply, there is no need to prove legal interest when requesting the access to public information.

ZUS filed an appeal complaint. The Appellate Court in Warsaw in its judgment of 23 April 2007 case file V Ca 454/07 dismissed it. The Court held that the court of first instance provided deep and proper analysis of binding legal norms and its judgment was correctly applied.