The Supreme Court in its order of 23 March 2016 case file III CZP 102/15 answered important questions related to minutes of hearing that were recorded as electronic/digital versions. The Regional Court decided a case related to payment, while some doubts as to interpretation of law related to recording of minutes and evidence, arose. The Supreme Court held that the transcription of the minutes that were recorded as sound and video is not an official document according to the provisions of the Civil Proceedings Code – CPC – (in Polish: Kodeks Postępowania Cywilnego) of 17 November 1964, published in Journal of Laws (Dziennik Ustaw) No 43, item 296, with subsequent amendments, and as such cannot be used for findings related to court’s session. If the minutes recorded as audio and/or audio and video do not allow to determine the content of evidence, the Court has to repeat an action related to this step. On an appeal, there is no need for the applicant to indicate a specific part of the sound recording (or video and audio) that relates to action of taking an evidence.
Archive for: Polish Supreme Court
The ePaństwo Foundation requested the President of the Supreme Court to disclose information on agreements entered between the Supreme Court and the commercial publishers of case-law of the Supreme Court. First, the President refused to initiate proceedings in this case. The Foundation filed a complaint against such order. The Voivodeship Administrative Court in its judgment of 10 January 2012 case file II SA/Wa 2259/11 repealed it, and the President filed a cassation complaint that was dismissed by the Supreme Administrative Court in its judgment of 11 September 2012 case file I OSK 916/12. The First President of the Supreme Court in its letter of 6 December 2012 informed the Foundation that the requested information is not public. The Foundation filed a complaint against the inactivity of the President. The Voivodeship Administrative Court in its judgment of 19 February 2014 case file II SAB/Wa 443/13 obliged the President to consider the request. The President filed a cassation comaplaint.
The Supreme Administrative Court in its judgment of 30 September 2015 case file I OSK 2093/14 dismissed it and ruled that the First President of the Polish Supreme Court has to disclose the requested information. In the meantime, someone else has obtained all the requested agreements and made their copies available online.
Leszek Czarnecki and his wife Jolanta Pieńkowska sued Grupa o2, the owner and publisher of pudelek.pl website. Mr Czarnecki claimed that articles posted on this website infringed his personal interests by publishing information about social status and a new home, which was built on a grand scale.
The District Court in Warsaw in its judgment of 24 October 2011 case file IV C 1639/10 found the publisher guilty. The court held that the content of articles undermined the prestige of the spouses as they are people commonly known, reputable and rich. The Court ruled that the amount of compensation is up to 200.000 PLN, because, as the judge assessed the higher the prestige of imputed persons is, the higher should be the economic sanction.
Grupa o2 appealed. The Appeallate Court in Warsaw in its judgment case file VI ACa 73/12 ordered owners of both sites to issue an apology but reduced the amount awarded, and ruled that the company has to pay 20.000 PLN for social purpose. Both parties filed cassation complaints.
The Supreme Court in its judgment of 12 September 2014 case file I CSK 542/13 repealed the contested judgment and returned the case for further reconsideration. The reasons were based on procedural grounds. It turned out that the Appeallate court has assessed the evidence, but it did not find its own conclusions. The Court also did not rule on the relationship between comments posted by Internet users and the provisions of Polish Act on Providing Services by Electronic Means that exclude the liability of the ISPs.
The Polish company PASTA i BASTA Sp. z o.o. from Warszawa, the owner of the word-figurative trade mark pasta i basta 100 sposobów na makaron cafè R-212390 sued Restaurators Podlaszewscy Spółka Jawna from Toruń. PASTA i BASTA requested the court to prohibit Restaurators Podlaszewscy the use of restaurant name Pasta & Basta and to refrain from the use of Internet domain name pastaandbasta.com and to oblige the defendant to withdraw from the Polish Patent Office an application for the word-figurative trade mark pasta&basta Z-368187 and the withdrawal of the application for a Community trade mark and the award of 60.000 PLN.
The District Court dismissed the complaint and PASTA i BASTA decided to appeal. The Appeallate Court ordered Restaurators Podlaszewscy to cease the use of the name of the restaurant and refrain from using the website and ordered the defendant to pay 10.000 PLN. Restaurators Podlaszewscy filed a cassation complaint.
The Supreme Court in its judgment of 11 December 2013 case file IV CSK 191/13 held that if the competitor uses Internet domain name identical or similar to a registered trade mark, there may be trade mark infringement if such domain use may cause the likelihood of confusion as to the origin of the goods or services, or result in violation of the advertising function of the trade mark.
See also “Polish case law on domain names“.
Roman Giertych sued Ringer Axel Springer, the publisher of fakt.pl website, for the infringement of personal interests. Mr Giertych demanded that defamatory comments posted at fakt.pl should be removed by the publisher. He also seek for the compensation and the apology to be published on some websites.
Ringer Axel Springer argued that it is not responsible for the comments that appeared on its website based on the provisions afforded in 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 the TOS that excluded the liability of the publisher for vulgar or offensive comments.
The District Court in Warsaw in its judgment of 20 October 2011 case file III C 330/11 agreed that all these comments were defamatory, however, the Court ruled that there is a different legal status of the editorial part of the website that included newspaper articles, and another status has to be attributed to a part that included the users’ comments – i.e. an internet forum, even if these comments were posted under the article placed by the owner of a website/web hosting provider. Despite claiming the right to control the content of entries (comments) that were made by website’s readers, in the light of the provisions of the PSEM, the publisher has no such obligation. The Court decided that the publisher can not be held responsible for offensive comments posted on its website, however it can be found responsible only in case it failed to remove such comments, after obtaining positive knowledge of the unlawful nature of such entries. It means that under the Polish law, the publisher is not liable for the infringement of personal rights, but only for a possible damage that is based on the general principles that are provided in the Polish Civil Code. Mr Giertych appealled.
The Appeallate Court in Warsaw in its judgment of 11 October 2012 case file VI A Ca 2/12 made a clear distinction between the services provided by Ringer Axel Springer. The first one was a news service of a daily newspaper made available for free in the electronic form under the domain name fakt.pl, and the second was a free service of the internet forum. The provisions 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, should be applied to the first service, and the provisions of the PSEM to the second. The Court ruled that comments posted for free, by anonymous users of fakt.pl website under the article that was an online version of a paper edition, do not constitute press materials as defined in the Article 7(2)(i) of the APL. The lack of any influence from the editorial over anonymously published comments, not to mention any of their prior verification makes this kind of speech free of control and as such cannot be regarded as a press material. The Court disagreed with Mr Giertych that such comments should be treated as “letters sent to the editor” of a journal that is published electronically. The Supreme Court in its judgment of 28 September 2000 case file V KKN 171/98 ruled that letters to the editor are the press material if they were sent to the editor for publication, and the editor-in-chief is responsible for publication of press releases, however, the publication of the letter to the editor must be preceded by careful and accurate checking of the information contained in such a letter to the editor. The Court agreed that such comments could be deemed as letter to the editor according to the APL, but only, if they were published in the paper version of the magazine, therefore, the editor (editor-in-chief) or the publisher would have full control over the content of such comments/letters. Users of fakt.pl do not send their their opinions and comments to the editorial of fakt.pl for publication on a discussion forum that exists on that same website, but they decide themselves about such a publication. The editor-in-Chief cannot therefore be responsible for comments published by third parties, because he or she had no control over the content or the action. The Court also ruled that Mr Giertych drawn incorrect conclusions as to the Terms of Service of fakt.pl website, in which the editorial of fakt.pl allegedly reserved the right and at the same time undertook its control over the content posted on fakt.pl website, including comments, and the right to manage them, especially the right to decide which comment deserves publication and which does not. First, the Court found that Ringer Axel Springer has reserved only the right and not an obligation to manage of comments posted by users, secondly, this right was reserved in the TOS not on behalf of the editorial of a journal that is published in electronic form under the domain name fakt.pl, but on behalf of the administrator of the IT system, thirdly, the reserved right applied not to decisions about publication of a particular comment on the website, but to decisions about its blocking, moderation or deletion. Therefore, the Court dismissed the appeal. Mr Giertych filed a cassation appeal.
The Supreme Court in its judgment of 10 January 2014 case file I CSK 128/13 partially agreed with Mr Giertych and returned the case to the lower court for reconsideration. The SC held that if the comments were defamatory and included vulgar words, the IT system applied at fakt.pl should have automatically removed such comments, but it did not, therefore it must be presumed that the publisher of a website, could know about offensive comments. If there was such knowledge, then the publisher/editor is liable for the infringement of personal interests. The Supreme Court established the so-called presumption of facts based on the provisions of the Article 231 of the Civil Proceedings Code. The court may conclude and consider as established facts, that are relevant for the outcome of the case, if such a conclusion can be derived from other established facts (presumption of fact).
Regardless of the cassation complaint filed in this case, Mr Giertych filed a complaint before the Polish Constitutional Tribunal. Mr Giertych requested the Tribunal to decided whether Article 14 of the PSEM is consistent with the principle of the rule of law, the right to protect of private life, family, honor and good name.
The Supreme Court in its judgment of 8 November 2012 case file I CSK 190/12 held that without a doubt, the first name and surname constitute personal data of the individual, therefore, the important question arose, whether they belong to the scope of the individual’s privacy as understood in the provisions of Article 5(2) 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 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.
Previous opinions of the Supreme Court on the relationship between the right to protect of personal data and the right to privacy are not clear. They were formulated mainly from the point of view of the protection of personal interests as defined in Articles 23 and 24 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.
The personal interests of a human being, in particular to health, dignity, freedom, freedom of conscience, surname or pseudonym, image, secrecy of correspondence, inviolability of home, and scientific, artistic, inventor’s and rationalizing achievements, shall be protected by civil law independent of protection envisaged in other provisions.
§ 1 The person whose personal rights are threatened by someone else’s action, may require the desist of that action, unless it is not illegal. In the event of the infringement one may also require, the person who committed the violation, to fulfill the actions necessary to remove its effects, in particular, to make a statement of the relevant content and appropriate format. According to the conditions laid down in the Code one may also require monetary compensation or payment of an appropriate amount of money for a social purpose indicated.
§ 2 If as the result of a breach of personal rights one has suffered pecuniary prejudice, the aggrieved person may claim compensation based on general principles.
§ 3 The above shall not prejudice the entitlements provided by other regulations, in particular in copyright law and the patent (invention) law.
The Supreme Court in its judgment of 15 February 2008 case file I CSK 358/07 (published in OSNC 2009, no. 4, item 63) ruled that legal commentators and case law of the Constitutional Court agree that the right to protect of personal data is derived directly from personal rights such as human dignity and the right to privacy, citing judgments of the Polish Constitutional Tribunal of 19 February 2002 case file U 3/01 (published in OTK-A 2002, no. 1, item 3) and of 12 November 2002 case file SK 40/01 (published in OTK-A 2002, no. 6, item 81). Nowadays, the collection and processing of the personal data is technically relatively simple, therefore it is necessary to protect a person against uncontrolled collection and use of his or her personal data, often without the contribution or even awareness of the person concerned. For these reasons, the legislator specifically regulated the issues of data collection, processing, use and protection of personal data in the Polish Act of 29 August 1997 on the Protection of Personal Data – PPD – (in Polish: Ustawa o ochronie danych osobowych), published in Journal of Laws (Dziennik Ustaw) of 29 October 1997, No. 133, item 883, unified text published in Journal of Laws (Dziennik Ustaw) of 6 July 2002, No. 101, item 926, with subsequent amendments. While interpreting its provisions, one cannot ignore the Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data, and its preamble that explicitly states that data-processing systems are designed to serve man, whereas they must, whatever the nationality or residence of natural persons, respect their fundamental rights and freedoms, notably the right to privacy. The Supreme Court in its judgment of 28 April 2004 III CK 442/02 (unpublished) stressed that when assessing whether there has been the breach of privacy protected by the law, this concept cannot be absolutized due to the degree of its generality, it requires interpretation, taking into account the specific circumstances of the situation. Events and circumstances that form the personal and family life can be classified as private sphere of life. The special nature of this area of man’s life justify the grant of its strong legal protection. However, this does not mean that any reference to a particular person was information in the field of his or her personal life. The regime of protection of privacy and personal data protection regime are therefore independent. Undoubtedly, when it comes to the relationships and the impact of these regimes, because in certain situations, the actual processing of personal data may result in a violation of personal interests in the form of the right to privacy, or protection of the right to privacy will required the objection to the use of personal data. It is difficult to unequivocally determine whether the disclosure of the first name and the surname of an individual by a local government violates his or her right to privacy. This problem can be resolved only while assessing particular circumstances of each case. In this case, the city was requested to disclose the names of individuals with whom it has entered into a contract of mandate and contract of work. One of these contracts concerned preparation and delivery of a lecture. It was difficult for the Court to accept that anonymization and hiding of the surname of a person giving such a lecture would have any meaning. Other agreements related to use of the electronic system of sociological analysis and organization of the conference. They were entered by specific individuals with a public body, which was the city. These people had to reckon with the fact that their personal data will not remain anonymous. For a person requesting access to public information related contracts entered by a local authority, names of parties to such agreements are often more important than the content, and it is understandable for obvious reasons. It would be difficult in this case to defend the view that the disclosure of names of people in the present context would be deemed as a limitation on the exercise of constitutional freedoms and rights of these persons. It had therefore to be assumed, that the disclosure of the names of persons entering civil contracts with a local authority does not affect the right to privacy of those persons referred to in Article 5(2) of the API.
A Polish lawyer who felt insulted by the comments that appeared on znanyprawnik.eu website, sued its owner. The case went through all instances. The Polish Supreme Court in its judgment of 18 January 2013 case file IV CSK 270/12 dismissed the cassation complaint filed by the offended lawyer. The Court held that all comments were not about facts that could be verified, only described the experience of cooperation with a lawyer and did not contain offensive or vulgar expressions. The plaintiff is an attorney, a public person performing certain services in the field of law and his services should be subject to assessment, which is not always favorable. Due to the nature of the activities carried out by the plaintiff, the limits of acceptable criticism are wider, because the person undertaking public activities does it voluntary, yet inevitable, undergo evaluation and public reaction.
Julius Sämann Ltd., the owner of the figurative trade mark WUNDERBAUM IR-0579396, filed a notice of opposition to a final decision of the Polish Patent Office on the grant of a right of protection for the word-figurative trade mark Forest Fresh R-183901 owned by S&S Smiczek & Smiczek Hanna Smiczek. Both trade marks were registered for similar goods in Class 5, mainly air freshening products. Julius Sämann Ltd. claimed that because of the similarity of goods there is a risk of misleading the public, in particular by evoking associations with the earlier mark. The company provided also evidence on reputation of its trade mark.
The Polish Patent Office invalidated the right of protection. The PPO decided that three required conditions had to be cumulatively met in this case: i) the reputation of the earlier mark, ii) the similarity or identity of signs, iii) if it without due cause would bring unfair advantage to the owner of the later trade mark or be detrimental to the distinctive character or the repute of the earlier trademark. The PPO noted that the case law distinguishes between absolute and relative methods of assessing reputation. The first one considers knowledge of the mark and takes into account primarily the percentage of a certain degree of its recognition on the market. The relative method emphasizes different criteria, including the degree of the recognition of the trade mark, the market share in terms of quantity and value of goods sold, the extent and duration of product advertisements marked by the sign, territorial and temporal scope of its use, licenses granted, quality of the goods, the value of the sign in the evaluation of independent financial institutions, the size of expenditures incurred in connection with the promotion of trade, as well as relationship price of substitute goods. The evidence material can be public opinion polls, prizes and awards, press releases, ratings, reports, invoices and other commercial documents, as well as various promotional materials. The Polish Patent Office has adopted a mixed methodology in this case, and ruled that both the evidence on reputation, that was claimed and established before the date of application of the contested trade mark, as well as documents from the later period, strengthen the recognition of reputation of the trade mark WUNDERBAUM IR-0579396. The PPO decided that both trade marks are similar in visual, aural and conceptual aspects. The PPO noted that the market presence and existence of a trade mark which consumers associate with reputation of another sign, harm the interest of the owner. S&S Smiczek & Smiczek Hanna Smiczek filed a complaint against this decision.
The Voivodeship Administrative Court in Warsaw in its judgment of 2 June 2011 case file VI SA/Wa 334/11 dismissed it. The Court agreed with the the assessment of the PPO, and repeated that an entrepreneur, who for the goods of the same type, chooses a sign that is similar to a trade mark with earlier priority, given that there is an infinite number of signs to be selected, acts at its own risk. S&S Smiczek & Smiczek Hanna Smiczek brought a cassation comaplaint.
The Supreme Administrative Court in its judgment of 10 July 2012 case file II GSK 2324/11 repealed the contested judgment and returned it to the VAC for further reconsideration. The Court held that the important drawback of the contested judgment and the decision of the PPO was the assumption on the similarity of the opposed trade marks that was based on the mere fact of the use in their visual aspect, a form of tree, without trying to examine whether the different presentation, including the type and shape of the tree, used in these signs, allowed for the adoption of the view that there exists the similarity of the signs. As a result, the Polish Patent Office, followed by the VAC, accepted the monopoly (exclusiveness) of the company to use very idea of the tree element in its trade mark. The SAC recommended that the VAC should also take a stand on the consequences of the fact that S&S Smiczek & Smiczek Hanna Smiczek used its trade mark for a considerable period of time from 2002. After almost 5 years, Julius Sämann Ltd. initiated a civil action against the S&A. The civil proceedings with regard to trade mark infringement ended before the Supreme Court in its judgment of 14 October 2009 case file V CSK 102/09. The Supreme Court dismissing a cassation appeal filed by Julius Sämann Ltd., based on the argument that long-standing and undisturbed use of the sign in question, in connection with the principle venire contra factum proprium, according to which, if the party continued at a specific practice, it can not rely on its illegality, if other entity accepted such practice in good faith and it could suffer injury as a result of the changes. The application of this rule would come into play especially in a situation, if after the reexamination of evidence, the similarity of opposed signs has been established, and there was not any proof of bad faith on S&S side. The argument that there was bad faith requires evidence and proof, because good faith is presumed. Whether, in connection with long-term use, the S&S trade mark has acquired distinctiveness under average conditions of the market, a feature which is required for any sign to be registered, could speak in favor of the principle of venire contra factum proprium. In addition, marking the goods produced by S&S with its own trade mark, which are the goods of the same kind as products of Julius Sämann Ltd., undoubtedly positively affected the overall demand for such goods on the marker. Therefore, the invalidation of S&S trade mark in situation of its use in good faith, could easily lead to the acquisition of the customers of S&S by Julius Sämann Ltd., without incurring the costs which were attended by S&S in the promotion of the sign, The Court found it difficult to accept. The SAC also held that it should be borne in mind that the right of protection for a trade mark, as every object in the closed list (numerus clasus) of property rights, is admittedly an absolute personal right effective against all (erga omnes), however, this right is not subject to absolute protection. In the light of the general principles for the exercise of property rights as defined in the Polish Civil Code, the boundaries of this right are defined in the Acts and the rules of social coexistence. The Polish Industrial Property Law also refers to these rules. For these reasons, the circumstances giving rise to the allegation of the infringement of the principle of venire contra factum proprium, are one of the limits to the exercise by the owner of its legitimate socio-economic use of the right of protection that derives from the registration of the trade mark. Thus, the invalidation proceedings started against the trade mark Forest Fresh R-183901, in violation of the above mentioned principle, may be considered as the abuse of the right of protection for a trade mark by the proprietor of such a right, that is not entitled to the protection.
Daniel Macyszyn, acting as the President of the ePaństwo Foundation, asked the First President of the Supreme Court of the Republic of Poland to disclose information why and on what legal basis, the Supreme Court in its decision No. BSA III – 055-90/11 posted references to the LEX software that is published by Wolters Kluwer, in situation when information available under these references is available for free and in public repositories that are published by the Supreme Administrative Court, and there are also other commercial legal information systems available on the Polish market. The Foundation wanted to know, whether the Supreme Court has the license for the use of LEX software. If the answer was positive, the Foundation inquired when, and in what procedure, and for what price and how many licences were purchased, and what were the criteria for selecting this software. Mr Macyszyn also aksed why the Supreme Court uses this software and not the public and free resources such as repositories of decisions of administrative courts, provided by the Supreme Administrative Court and the gazettes published by the Government Legislative Centre. The last question was whether the Supreme Court cooperates with the Wolters Kluwer on matters other than purchasing a license by the Supreme Court to the LEX. The First President refused to initiate proceedings with regard to disclosure of the requested information and noted that civil law contracts between public authorities with third parties operating in the sphere of private law, do not belong to the category of public information, consequently, they cannot be disclosed to anybody. Such contracts do not in fact belong to the category of “public information” within the meaning of Article 6(1) pt. 4 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 6. 1. The following information is subject to being made available, in particular on:
1) internal and foreign policy, including:
a) intentions of legislative and executive authorities,
b) drafts on normative acts,
c) programmes on realisation of public tasks, method of their realisation, performance and consequences of the realisation of these tasks,
2) entities, defined in Article 4, it. 1, including:
a) legal status or legal form,
c) subject of activity and competencies,
d) bodies and persons performing functions therein and competencies,
e) property structure of entities, defined in Article 4, it. 1, points 3-5,
f) property they dispose of,
3) principles of functioning of entities, defined in Article 4, it. 1, including:
a) mode of conduct of public authorities and their organisational units,
b) mode of conduct of state legal persons and legal persons of local authorities in the area of performing public tasks and their activity within the frames of budget and non-budget economy,
c) methods of passing private-public acts,
d) methods of accepting and settling matters,
e) state of accepted cases, order of their settling or resolving,
f) conducted registers, books and archives and on methods and principles of making data there contained available,
4) public data, including:
a) contents and form of official documents, in particular:
– contents of administrative acts and other resolutions,
– documentation on the control and its effects as well as presentations, opinions, conclusions and statements of the entities having conducted the control,
b) opinion on public issues made by the bodies of public authority and by the public officers in the understanding of the provisions of the Penal Code,
c) contents of other presentations and assessments made by the bodies of public authority,
d) information on the condition of the state, local authorities and their organisational units,
5) public property, including:
a) property of the State Treasury and state legal persons,
b) other property rights to which the state and its debts are entitled to,
c) property of the units of local authority and professional and economic local authorities as well as property of legal persons of local authorities and the ill persons’ offices,
d) property of the entities, defined in Article 4, it. 1, point 5, coming from disposing of the property, defined in c. a) – c) as well as the profits from this property and its encumbrances,
e) incomes and losses of the commercial companies in which the entities, defined in c. a) – c) hold the dominant position in the understanding of the provisions of the Commercial Companies Code and disposal of this income and the method of covering losses,
f) public debt,
g) public assistance,
h) public burden.
2. The official document in the understanding of this Act is the text of declaration of will or knowledge, preserved and signed in any form by the public officer in the understanding of the provisions of the Penal Code within the frames of its competencies, directed to another entity or filed to the acts.
The Foundation requested for the re-hearing and the First President again refused. Daniel Macyszyn filed a complaint against these two refusal orders.
The Voivodeship Administrative Court in Warsaw in its judgment of 10 January 2012 case file II SA/Wa 2257/11 repealed both orders of the First President and ruled them unenforceable. The First President filed a cassation complaint.
The Supreme Administrative Court in its judgment of 11 September 2012 case file I OSK 903/12 dismissed it and held that any agreement between the public authorities and other entities, is deemed as public information. The Supreme Administrative Court pointed out that in matters of access to public information, the public authority cannot refuse to initiate proceedings. It have to either disclose public information, or if there are situations provided in Article 5 of the API, refuse to disclose such information, but in the form of a decision. But even while considering by the authority, whether the requested information is public information, or in case that would lead to the answer that the information is not public information, or that the authority simply does not have it, the proceedings were already initiated, therefore it cannot refuse to initiate it.
The Supreme Administrative Court in its judgment of 11 September 2012 case file I OSK 916/12 dismissed another cassation complaint filed by the First President against the judgment of the Voivodeship Administrative Court in Warsaw of 10 January 2012 case file II SA/Wa 2259/11 that repealed orders of the First President of the Supreme Court in which it refused to initiate proceedings to disclose information on the content of the contracts, which the Supreme Court of the Republic of Poland, the authorities or persons acting under the authority of the government, concluded with the company Wolters Kluwer, with regard to series of books published by Wolters Kluwer such as “Studies and analysis of the Supreme Court” and “Bulletin of the Supreme Court – Labour and Social Security and Public Affairs Chamber”, and the disclosure
of the contents of the contracts, which the Supreme Court of the Republic of Poland, the authorities or any person acting from on behalf of the authorities, have concluded with the publishing house LexisNexis Publishing sp. z o.o,, with regard to a series of publications such as “The case law of the Supreme Court – Civil Chamber (OSNC)”, “The case law of the Supreme Court – Labour, Social Security and Public Affairs Chamber (OSNP)”, and disclosure of the contents of the contracts, which the Supreme Court of the Republic of Poland, the authorities or persons acting under the authority of the government, concluded with the Editorial Board of the “Palestra” with regard to a series of publications entitled “The case law of the Supreme Court – Criminal Chamber and the Military Chamber (OSNKW)”. The Foundation requested also the disclosure of information on what procedure governed the purchase of the above mentioned periodicals by the Supreme Court, in what amounts and for what price.
The District Court in Toruń requested the Polish Supreme Court to answer the question whether a party of civil proceedings is allowed to file an appeal in form of electronic document. If the answer would be “yes”, the Court also wanted to know whether the deadline for lodging an appeal is confirmed by the date on which the letter was received by the device receiving the court’s e-mails. The District Court additionally enquired, whether such letters can be signed by electronic signature as defined in the Act of 18 September 2001 on Electronic Signature – ESA – (in Polish: ustawa o podpisie elektronicznym), published in Journal of Laws (Dziennik Ustaw) of 15 November 2001, No 130, item 1450, with subsequent amendments.
The Supreme Court in its judgment of 23 May 2012 case file III CZP 9/12 held that filing an appeal by e-mail is acceptable only, if a specific provision allows for such action. Currently, this option is very limited in the Polish law. The printed version of an appeal filed by electronic means may be treated as effective, if it will be signed by the party at the request received from the Court, and the date for submission of such a letter to the court is then the date the printing was done.
MEDianus sp. z o.o. and Medianus Agencja Reklamowa sp. z o.o. are seated in the same city, at a location nearby. The first one uses medianus.net domain name and the second medianus.pl. The first company was entered in the Register of Business Entities in the National Court Register (KRS) as MEDianus in June 2003 r. The second one was entered in 2009. MEDianus sp. z o.o. filed a complaint, to prohibit the other company to use the name “medianus” in the company name and as a domain name, based on the provisions of Article 3 and 5 of the Polish Act of 16 April 1993 on Combating Unfair Competition – CUC – (in Polish: ustawa o zwalczaniu nieuczciwej konkurencji), published in Journal of Laws (Dziennik Ustaw) No. 47, item 211, with subsequent amendments. MEDianus sp. z o.o. argued the the use of the same company name caused many confusions with delivery of post or invoices.
The District Court dismissed all claims. However, the Appellate Court in Kraków agreed with MEDianus sp. z o.o. appeal and ordered Medianus Agencja Reklamowa to change its company name and website and to publish an apology in two national newspapers.
The Polish Supreme Court in its judgment of 9 December 2011 case file III CSK 120/11 dismissed the complaint filed by Medianus Agencja Reklamowa. The Court held that in order to apply the provisions of Article 5 of the CUC, both companies have to be in competitive relationship. This situation happens when there is a risk of confusion with regard to the identity of entrepreneurs. The Court also confirmed that the so-called cybersquatting is an unnamed delict (tort) under the Polish law on combating unfair competition.
See also “Polish case law on domain names“.
Cezary Pazura sued Grupa o2, the owner and publisher of pudelek.pl website. Mr Pazura claimed that the company infringed his dignity, the inviolability of the home, privacy and publicity, by publishing 17 articles that concerned his relationship with Edyta Zajac, then fiancee, and now his wife. He argued that comments like “his mistress was no longer pretending, what she meant?”, “oldish playboy” were clear examples of the infringement. The District Court agreed with Mr Pazura, but Grupa o2 appealled, and the Appellate Court reversed the contested judgment and dismissed the suit. Mr Pazura filed a cassation complaint.
The Supreme Court in its judgment of 14 December 2011 case file I CSK 111/11 repealed the contested decision and returned it to the Appellate Court for further reconsideration. The Court held that the public status of a person does not automatically mean that his or her private life becomes also a “public life”. The Court clarified the understanding of the provision of Article 14(6) of the Polish Act of 26 January 1984 on Press law – APL – (in Polish: ustawa Prawo prasowe), published in Journal of Laws (Dziennik Ustaw) No. 5, item 24, with subsequent amendmets.
It is not allowed to publish information and data concerning the private sphere of life without the consent of the person concerned, unless it is connected directly with the public activity of such a person.
The Court ruled that in this case it was necessary to demonstrate the relationship between the public activity carried out by Mr Pazura, and published image, or private information that was published on pudelek.pl website. Therefore, it had to be a relationship between a person’s behavior in the public sphere. In addition, the disclosure of such information should serve to protect specific, socially legitimate interest. Therefore, the primary task of the courts was to determine whether in this case, Mr. Pazura’s consent was granted, or whether it was not needed at all.
The Supreme Court in its judgment of 5 November 2008 case file I CSK 138/08 dismissed a cassation complaint in case related to tangible property, however the Court also decided on issues related to digital evidence. The Supreme Court found that the Appeallate Court erred in law by not admitting and refusing to assess evidence of computer printouts submitted to the case by the defendant. The Court did not agree with the opinion that prints do not meet the requirements of documents and thus can not be considered as evidence in the process. Even if unsigned computer printouts are not considered as a document within the meaning of provisions of Article 244 and 245 of the Civil Proceedings Code – CPC – (in Polish: Kodeks Postępowania Cywilnego) of 17 November 1964, published in Journal of Laws (Dziennik Ustaw) No 43, item 296, with subsequent amendments, it should be considered that the CPC does not contain an exhaustive list of evidence and it is acceptable to use any source of information about the facts relevant to the outcome of the case, if it is not contrary to law. Therefore, the Appeallate Court should allow to submit such evidence based on the provisions of Article 308 of the CPC. This provision refers to evidence other than as expressly set out in the CPC, and the same may also apply to computer printouts.
Writing under a pseudonym, Dariusz B. posted a comment on the website “Gazeta online Elbląg 24”. In his post Dariusz B. wrote to the Mayor of the Elbląg town, that he has photographs of people who sit in the city council, and he described the content of these pictures as a “sex scandal”. He noted that the Mayor’s spokesman ignored this case, so he wanted to know what should he do next with such photographs. Other anonymous Internet users posted comments under the post that has been written by Dariusz B. One of them has disclosed who is the author of the post, and also expressed a negative opinion about the post, by calling it a blackmail. This person also suggested that Dariusz B. has used the media for his own purposes in order to manipulate press journalists. The intentions of Dariusz B. and his honesty, were also undermined. The post of Dariusz B. was described as a blatant violation of the law for which he should bear criminal responsibility. “Gazeta online Elbląg 24” is a service available for free. It is operated by the Municipality of the Elblag town. The comment in which personal data of Dariusz B. was disclosed was written from a computer that had the IP address belonging to the organizational unit of the Elblag town. The unit operates wireless Wi-Fi, whose range includes several publicly accessible areas of the building and parking lot adjacent to it. It was not possible to identify the person who posted this comment. The Police, at the request of Dariusz B. commenced an investigation and failed to establish who was the author of the comment, even when the Municipality of Elblag has disclosed all data, including IP addresses. Dariusz B. sued the Municipality of Elbląg for the infringement of his personal interests. The District Court and the Appellate Court dismissed the suit. Dariusz B. filed a cassation complaint.
The Supreme Court in its judgment of 8 July 2011 case file IV CSK 665/10, published in electronic database LEX, under the no. 898708, held that critical comments of the content of post and the very fact of its posting, or disclosure of the name and surname of Dariusz B., was not a violation of his personal interest. However, it was a violation of personal interests (dignity and reputation) when such action has been called illegal activity, fraudulent and manipulative, a blackmail and provocation, which undoubtedly discredited Dariusz B. in public opinion, especially as a social activist, who was active at another online forum. Such statement, not supported by the facts, was unlawful. In the case of an infringement of one’s personal interests, the court may award pecuniary compensation to a person whose personal interests have been infringed, an approriate amount as pecuniary compensation for the wrong suffered or may, on his demand, adjudge an appropriate amount of money to be paid for a social purpose chosen by him, irrespective of other means necessary to remedy the effects of the infringement. Not only the person who directly caused the damage shall be liable, but also any person who has induced or helped another person to cause the damage, including those who consciously took benefit from a damage caused to another person. However, the Court ruled that there was no normal causal link between the actions of the Municipality of Elblag, and the damage suffered by Dariusz B., and such a link occurs only when the action is directed to accomplish the tortious activity.
By opearating a website “Gazeta online Elbląg 24” and a discussion forum, the Municipality of Elbląg was deemed as the Internet services provider. However, such ISPs, are responsible for the violation of personal rights performed by others only when they knew that the post violates these interests and they did not immediately prevent the access to the post. Therefore, the ISP is not obliged to control the content of posts written by users on a free discussion forum website. Taking into account the nature and purpose of services based on making available free of charge of a discussion website, and considering also that there were no general rules for the management of such services and systems, the Court held that there were no grounds to impose a general obligation on the ISP to provide tools to identify users of such a website. The Court ruled that the anonymity of persons using the publicly available online news website, is a generally accepted principle and essence of this type of service. It provides freedom of expression, which is the goal of such websites. Consequently, the Court held that the ISP that created and provides free access to the website with a discussion forum, has no obligation to ensure the ability to identify the users who maded posts on this website.
The Supreme Court in its judgment case file I CSK 743/10 ruled that if the newspaper, which lost a case for protection of personal interests and was ordered to publish an apology in the paper version, has also an online edition, then such a newspaper should also place a reference to apologies for this publication in its online archive.
Hochland Reich Summer & Co. KG owns a three-dimensional trade mark IR-736770 in Poland, and Hochland AG is the owner of the right in registration of an industrial design Rp-5337. The 3D trade mark is not used in the clear registered form, but is marketed as a product package of ALMETTE cheese, with additional verbal and figurative elements. Both Hochland AG and Hochland Reich, Summer & Co. KG, together with Hochland Polska sued the Polish dairy cooperatives in Piątnica, because it has used the packaging for cheese, on which a graphic of a wooden pail that was similar to Hochland’s trade mark and design, was placed.
The District Court in Białystok in its judgment of 13 October 2009 case file VII GC 49/07 dismissed the suit and refused to recognize the trade mark as a reputed one. However, the Court agreed with the opinion issued by the expert witness that a clean pail, without any identifiers, stands out positively in comparison to other packagings, and by its distinctive shape is strongly associated with the Almette brand. The District Court agreed with Piątnica that this trade mark was not used in trade in its registered form, and that Hochland did not prove that the use of cup-like pail brings Piątnica unfair advantage or is detrimental to the distinctive character of Hochland’s trade mark, which is a prerequisite to the protection of reputed/renown trade marks. The Appellate Court in Białystok in its judgment of 26 February 2010 upheld these findings except the costs and the issue of trade mark use. Hochland filed a cassation complaint.
The Supreme Court in its judgdment of 10 February 2011 case IV CSK 393/10 found that the Appellate Court decided that the expert’s opinion had no probative value because of the unrepresentative range of research on which it was based, and as a result, the Court found that Hochland failed to prove that its trade mark is a distinctive sign, with reputation. The Appellate Court spoke on the inadequacies of the expert opinion only in the justification of the judgment, and not during the proceedings, which precluded Hochland from filing proper evidence. The Supreme Court ruled that renowned trade marks enjoy special protection – wider than the other trade marks, i.e., even if there is less similarity between trade marks or the goods. In the case of reputed signs, the risk of confusion or the likelihood of confusion is not required. The association with the earlier renowned sign is a sufficient condition. The Court noted that the Polish Industrial Property Law does not provide any definition of reputable trade mark, but only points to the specific conditions of protection. The Supreme Court emphasized that the definitions provided in the legal commentaries, as well as in the case law of the Court of Justice of the EU and Polish courts, differ in this respect. The Court noted that a reputable trade mark is recognized by a significant part of relevant public. The Polish legal commentators argue that such a sign must be known at least by 25 percent of relevant public, and if the percentage exceeded 50 percent, the reputation is always proved. The Supreme Court also noted that the protection of a reputable trade mark does not require the owner to prove that the use of a similar trade mark has brought its user unfair advantage or was detrimental to the distinctive character or the reputation of the earlier mark. A mere possibility of obtaining unfair advantage by the infringer or the very possibility of harmful effects to the distinctive character or the repute of the earlier trade mark, is a sufficient condition. Therefore, these conditions have normative and hypothetical nature. The Supreme Court held that the Appellate Court erred in the examination of the opinion of another expert witness, who showed that the use of the image of a wooden pail on the packaging of cheese, in the assessment of 69% of consumers may affect their decision on the purchase of goods, and therefore it could potentially influence the purchase of the goods produced by the defendant in its packagings. This circumstance was important for assessing whether the use by the defendant of Hochland’s trade mark could bring Piątnica unfair advantage at the expense of the owner of the trade mark, who first used the sign and incurred substantial costs for its promotions within a few years.
The Appeallate Court in Białystok in its judgment of 7 July 2011 case file I ACa 305/11 was bound by the decision issued by the Supreme Court. The Court pointed out that according to the opinion of Grzegorz Urbanek, who was appointed as an expert witness, the wooden pail is associated to the Almette brand in the perception of most respondents. Both the opinion and attached results showed that even a same wooden pail without and with identifiers has the same effect, i.e. the half of the respondents, because of the packaging, was willing to buy the Almette cheese, and not other cheese of the same type but in the same packagings. Therefore, the Appellate Court prohibited Piątnica to use in the course of trade of a figurative sign representing a wooden pail with a handle, on the packaging of its cheese products. Piatnica still uses the packaging for its cheese, which is similar to a wooden pail. The dairy cooperatives replaced the image from the packaging with the milk-churn with pouring milk.
Professor Andrzej Gregosiewicz posted very negative press articles and comments regarding homeopathic medicines, in particulr Oscillococcinum preparation that is produced by the French company Boiron. He also criticized regulations included in the Polish Pharmaceutical law. His publications were also available on different websites. These articles and comments included, among others, statements that homeopathic medicines may carry bird flu virus HN51, Professor Gregosiewicz argued that taking some homeopathic medicines is similar to suicide. He has named Oscillococcinum as the most widely used homeopathic product with the bird flu virus, and claimed that its producer was involved in bribery during the legislative process, in order to gain favourable regulations. Boiron Societé Anonyme sued for the infringement of personal interest. The case went through all instances.
The Supreme Court in its judgment of 10 May 2007 case file III CSK 73/07 held that the belief that someone is using the constitutionally guaranteed freedom of expression and he acts in the interest of public health is not a sufficient basis to consider certain actions as repealing the illegality of expression.
Terms of Service of Domeny.pl website contained a clause that allowed Domeny.pl to introduce changes in TOS and it also included a statement that the changes take effect “from the time a new version is available on the website”. The President of the Office of Competition and Consumer Protection decided that this provision violates the collective interests of consumers as they should be always informed about amendments to the terms. Otherwise they would have to constantly check to see if TOS has not been modified. The President ordered the removal of the questioned terms of service. Domeny.pl filed a complaint against this decision. The Supreme Court in its judgment of 12 April 2011 case file III SK 44/10 dismissed the complaint.
The information about the preparatory proceedings and a criminal trial of the two members of the Wielkopolski Bank Rolniczy board, had been revealed by the Polish prosecutor general Konrad Napieralski. He had mentioned each of the person by a full name. His statement was transmitted on TV, news were published in the Internet. Bianka Mikołajewska wrote an article about this case in the Polish newspaper “Polityka” published by Spółdzielnia Pracy Polityka.
Both members of the board filed a civil suit for the infringement of their personal interests against Mrs Mikołajewska and the publisher. They recalled the provisions of Article 13 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, which under no circumstances permits publication of any personal data concerning people during a court trial, unless a prosecutor or a court of law permit the publication. The journalist did not asked for a permission.
The first instance court dissmissed the case and the higher court accepted its decision. The Court ruled that Article 13(2) of the APL does not apply to public figures. Both courts agreed that if personal data has been disclosed in a public statement, a journalist has the right to consider its free access. The plaintiffs filed a cassation complaint to the Supreme Court. They argued that the provisions of Article 13(2) the APL apply to them as the public figures. They claimed that even when personal data are freely accessible that doesn’t mean they are to be published in a newspaper.
The Supreme Court in its judgment of 28 January 2009 case file IV 346/08 dissmissed the complaint. The Court ruled both lower courts were wrong. The Court decided that the Article 13(2) of the APL applies to the public figures too. However, the Supreme Court agreed that the journalist is free from charges. It was not in journalist duties to check if a prosecutor acted in good faith during his official statements.
The Supreme Court in its judgment of 5 February 2010 case file III CSK 120/09, published in LEX no 585820 ruled that the registration of a newspaper or a journal does not prejudge the right to the press title and does not rule on conflict or lack of rights of the other party to the registered press title.
Polish pop-singer Dorota Rabczewska sued Polish rapper Mieszko Sibilski for the infringement of her personal interests. She demanded an apology and 20.000 PLN as compensation for the damage she suffered. Rabaczewska lost the case in the first instance. The Court of second instance ordered Sibilski to publish an apology for the infringement of her dignity in the form of an online ad that has to be placed for 7 days at Polish portal site Onet.pl. The calculations showed that such action would cost around 32.000.000 PLN. Sibilski lodged an cassation complaint.
The Supreme Court in its order of 2 February 2011 case file II CSK 431/10 held that the court cannot order an apology for the violation of dignity, if the plaintiff requested for the protection of other personal interests, in this case her reputation and right to privacy. Moreover, the Supreme Court ruled that the second instance court improperly ordered the form of publication of an apology because it did not take into account technical requirements and the costs associated with it. The Supreme Court reversed the judgment and sent the case back for reconsideration.
The Polish Supreme Court in its judgement of 4 November 2010 case file II PK 110/10 held that single use of the company computer (laptop) for personal use during working hours and the occasional viewing of erotic files outside working hours is not a grave violation, which determines the disciplinary dismissal (termination of an employment agreement/contract).