Archive for: Art. 7(2) APL

Personal rights, case I ACa 572/11

June 5th, 2010, Tomasz Rychlicki

On 18 January 2010, Michał Okonek, the owner of MAP1 company, filed a petition to the court with a request to order ParaRent.com Wawrzyniak Sp. j. company seated in Szczecin, to block access to the thread entitled “a suit for the use of a part of a map” which is available at www.forumprawne.org website (http://forumprawne.org/prawo-autorskie/501-pozew-za-wykorzystanie-fragmentu-mapy.html) operated by ParaRent.com. Mr Okonek also requested the court to prohibit ParaRent.com to publish of new content concerning Michał Okonek at foras available at forumprawne.org website. Mr Okonek pointed out that ParaRent.com allows its users for posting and sharing information that unjustly accuse him of extorting money, making false statements, misleading the courts and prosecution, intimidation of Internet users, even for distributing of pornography. Moreover, users of forumprawne.org called Mr Okonek as the swindler and the parasite, while he only uses the right to sublicense the use of copyrighted works such as digital maps.

The District Court in Szczecin in its decision of 4 February 2010, case file I Co 26/10 sided with Mr Okonek and issued the order blocking the aforementioned thread. ParaRent decided to appeal.

The Appellate Court in Szczecin in its decision of 18 May 2010, case file I ACz 296/10 overruled the ban. The Court held that in cases filed against the public media, for the protection of personal rights/property, the court may refuse to grant an injunction against publication of given information if the important public interest opposes such injunction/ban.

Michał Okonek filed another lawsuit against ParaRent.com, for the protection of personal rights and compensation. The case was linked with a blocked thread. The District Court in Szczecin VIII Economic Division in its judgment of 5 May 2011 case file VIII GC 106/10 dismissed the complaint. The Court ruled the administrator of forumprawne.org website cannot be held responsible for comments that appeared on his website, unless Mr Okonek proves that the content of posts/comments was illegal, and the fact that the administartor had knowledge regarding such posts or comments, or received information from a reliable source regarding such posts or comments, and that the administrator did not fulfill his duty to disable access to such illegal content. All these prerequisite must be met together. The Court ruled that the administrator cannot arbitrarily interfere with the content published by users. These limits are set by the TOS of the forum website and the law. The Court noted that too much interference may lead to violation of freedom of expression, and thus it may also be an infringement of personal interests of users. The Court has also interpreted the meaning of the “credible information” of the illegal character of the stored data as provided in the Article 14 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.

1. A person who gives access to the contents of a network IT system to a customer, where the customer stores data, is not aware of the illegal features of the data or activity connected with the data and upon receiving an official notification or credible information about the illegal features of the data or activity connected with it, immediately bars access to the data, shall not be responsible for the data.
2. A Service provider who has received the official notification of an illegal character of the stored data that was supplied by the customer, and prevented the access to the data, shall not be liable to the customer for damages resulting from preventing access to such data.
3. A service provider who has received credible information of the illegal character of the stored data supplied by the customer and prevented access to the data, shall not be liable to the customer for the damage resulting from preventing access to such data, if it has immediately notified the customer of the intention to prevent access to data.

For the adoption of the credibility of information, it is necessary to show that on the basis of credible information, the ISP had an objective opportunity to assess the illegality of data placed on the Internet by the customer. A different interpretation – that each request of an interested person (legal or natural) results in receiving of credible information of the illegal character of the stored data, would cause that, in principle, anyone whose activities fall within the online forum discussion, could remove data with reference to the violation of personal interest, and it would end any discussion. As the Court noted, such situation would be against the principle of freedom of expression and the essence of Internet activity. The Court also ruled that a complext topic on Map1 actions against Internet users, which appeared in a short period of time shows great interest in the subject and proves the difficulties of the current monitoring, which, moreover, is not a responsibility of the ISP. The Administrator is not a forum editor, the users of this forum are themselves. Mr. Okonek became a public figure and therefore he should more callous. The Court decided that the administrator had acted properly moderating only part of the disputed posts.

Mr Okonek appealed. The Appellate Court in Szczecin in its judgment of 26 October 2011 case file I ACa 572/11 dismissed the complaint.

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“.

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.

Press law, case II SA/Wa 1885/07

October 30th, 2008, Tomasz Rychlicki

The Voivodeship Administrative Court in its order of 30 October 2008 case file II SA/Wa 1885/07 held that the legislature clearly included in the definition of the press all existing and emerging as a result of technical progress, means of mass communication (…), to disseminate periodical publications in print, video, audio, or other distribution technology, and although there are no established views on the recognition of internet communication as the press therefore the content of the provisions of Article 7(2) pt 1 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, should, however, allow for the broad understanding of the concept of “press”, as it was also interpreted by the Supreme Court in its order of 27 July 2007 case file IV KK 0174/07. See “Press law, case IV KK 174/07“. The court found that the Internet journals that can be considered as press publications, do not need to have a typical electronic “newspaper” form, similar to that published in the on line system by the big companies with the well-known news titles. Of course, it may also mean that the status of “the press” will get everything that is posted on the Internet, just because it is the result of technological progress and gets a potentially unlimited audience. Whether a publication that is available online has press characteristics should decided by the goal/objective/tasks of such publications. Since the role and task of the press is to disseminate information, the periodicity of communication, the cyclic information of the public of certain facts of social, economic, political, educational, cultural, music, film and art issues, etc., under the title, name, address or even a link it would indicate the purpose pursued by the editors, the publisher and the author of an electronic publication, a website that was created specifically for this purpose.

Press law, case IV KK 174/07

March 31st, 2008, Tomasz Rychlicki

The Supreme Court in its order of 27 July 2007 case file IV KK 0174/07 held that publishing news within Internet website which was available under szyciepoprzemysku.prv.pl domain name, is the deemed as equivalent to press publishing. They were charged by the Prosecutor for publishing the press without registration which was the breach of the provisions of 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 amendments.

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.

All periodicals and newspapers must be registered at a local court and the registration form must contain: title of the publication, address of the editorial office, personal data of the editor-in-chief, the name and address of the publisher and frequency of publication. The Supreme Court stated that it is undisputed that the newspapers and magazines by the fact that they appear in the form of Internet transmission do not lose their characteristic of the press title, both when online communication is accompanied by the transfer of messages established on paper, printed, being their different electronic form which is available online and when the message exists only in electronic form on the Internet, but appears periodically, meeting the requirements referred to in Article 7(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 Supreme Court once again stressed that the precondition for the recognition of mass media as the press, resulting from technical progress, depends on the periodic dissemination of publications and communications periodicals distributed via the Internet may take the form of newspapers or magazines, depending on the interval of appearance.

See also “Press law, case II K 367/08“.