Archive for: Art. 83 ARNR

Personal interests, case I C 327/11

August 30th, 2013, Tomasz Rychlicki

The case concerned class’ photos of 32 children. Such photos were placed on a social networking site The black and white pictures were taken between the years 1972-1980, in a public space, i.e. a public education institution. Most of them were photos of the class as a whole, not each individual student. One person who was shown in this picture demanded its removal. The administrator of a website refused. The case went through all stages of administrative proceedings, and the person concerned decided to initiate a civil suit. The plaintiff demanded an apology in the media, 20.000 PLN compensation and the payment of 50.000 PLN for a social purpose, from the owner of

The District Court in Wrocław in its judgment of 10 May 2013 case file I C 327/11 dismissed the suit. The Court ruled that the person seeking for the protection of his or her image has to prove that such image was published and is recognizable. It results from identification of information features of an image. Moreover, the image should be recognized not only by the person concerned, but also by third parties. The image of the plaintiff contained in the pictures was not fully recognized even his colleagues from the former primary school, as evidenced by comments on the website. Publishing of any informational or shooting materials on the website only provides the opportunity to look at such meterial by others, but this does not mean automatically that such information reached to an unlimited number of people, and consequently, that information was widespread. The Supreme Court in its judgment of 10 February 2010 case file V CSK 269/09 (published in: OSNC 2010/9/127) held data published on the web are not deemed as well-known/widespread data. The Supreme Court in its judgment of 27 February 2003 case file IV CKN 1819/00 (published in: OSP 2004/6/75) held that the infringement of the image of the individual occurs when it was published without the consent of the person in the photograph and while it allows for the identification of that person.

Personal interest, case I ACa 1176/09

February 26th, 2010, Tomasz Rychlicki

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

Personal rights, case I ACa 385/2006

July 31st, 2008, Tomasz Rychlicki

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

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

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

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

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

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

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

Personal interests, case I ACa 564/04

January 25th, 2006, Tomasz Rychlicki

On 2 September 2002, the Polish company Secunda, a publisher of a portal website, posted a link to website on its webpage under the “Entertainment and sex” category in the “Winning websites” section under the name “Young women are the best”. The link to website was described as follows “10 hardcore pictures galleries. One could deal with this issue far better”. The gallery no 3 featured pictures of a woman in a swimsuit, that were made during a photographic session for candidates to advertising campaign. The plaintiff who worked with models agency sued Secunda. She argued that she has never agreed to a distribution of her image, nor received any remuneration for participation in a photo session. The plaintiff noted that a link to the website combined with the recommendation of this site are a form of distribution of the image of a person depicted in photos available on Secunda’s website. The defendant took no steps to ascertain whether the plaintiff consented to distribute these photographs and it did not take any action to obtain such consent, the defendant’s conduct, involving the unauthorized dissemination of the image of the plaintiff on the porno website, violates her image rights and degrade her in the public due to the inclusion of her image in pornographic pictures. Secunda claimed that it has no standing in this case because the infringer was a person who created a gallery available under link.

The District Court in Kraków in its judgment of 26 February 2004 case file I C 2060/03 ruled that Secunda infringed on plaintiff’s personal rights by publishing questioned images. The court said that Secunda was responsible because it had the opportunity to check the contents of the “Winning websites” section, and images contained therein. The editor was responsible for the compilation of recommendations and a link to website, and in this case it was Secunda. Both parties appealed.

The Appellate Court in Kraków in a judgment of 20 July 2004 case file I ACa 564/04 TPP 2004/3-4/155 rejected Secunda’s appeal and changed the lower Court’s decision on damages awarded.