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Archive for: Art. 7 PPD

Personal data protection, I CSK 190/12

August 29th, 2013, Tomasz Rychlicki

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.

Article 23
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.

Article 24
§ 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.

Who is the controller in social networking sites?

February 14th, 2010, Tomasz Rychlicki

The question of who is the “controller” and the differences between a “controller” and “processor” as defined in the article 2(d) and (e) of 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, in the context of social networking sites (SNS), are at least controversial not only in Polish case law. See for instance T. Zeggane, W. Maxwell, US and EU Authorities Review Privacy Threats On Social Networking Sites, Ent. L.R. 2008, 19(4), 69-74.

The second area requiring clarification is the concept of “data controller” in an SNS environment. Under European privacy law, the controller is the entity which determines the purposes and means of the processing of personal data. In an SNS context, there are two broad categories of data: the information that the user provides to the SNS platform to register (such as the user’s real name and email address), and the data that the user uploads onto his or her profile. The former is personal data which the SNS platform controls. The latter is “user generated content”, which the user controls and can choose to share (or not) with others. Some SNS platforms provide the user with tools to control the extent to which information such as photos, personal tastes and the like are used to develop targeted advertising. Where such tools exist, the argument can be made that the user (and not the SNS platform itself) is the “controller” of the content the user uploads onto the profile. The concept of data controller is the cornerstone of European privacy law. The concept of controller as it is traditionally interpreted does not fit easily into the SNS environment, where the user is the focal point

As you can read from the above, the authors suggest that the situation requires a clarification of the concept of “controller” in terms of SNS. A similar view was also presented in the report of the European Network and Information Security Agency (ENISA), “Security Issues and Recommendations for Online Social Networks“, PDF file, p. 25.

Personal data protection, case I OSK 667/09

February 13th, 2010, Tomasz Rychlicki

On 15 January 2008, Tomasz W. filed with the General Inspector for Personal Data Protection (GIODO) a complaint concerning an unauthorized processing of personal data carried out by the Polish company Nasza Klasa Sp. z o.o. from Wroclaw, the owner of nasza-klasa.pl website. He informed the GIODO, that this very popular Polish website on classmates, hosts a photo featuring his image together with a list of names of other photographed people attached to it. Tomasz W. has repeatedly appealed to the website administrators with the request to remove his name from the list. However, he received no response from Nasza Klasa company.

As a result of the investigation, the GIODO found that on 31 December 2007, a registered user of nasza-klasa.pl posted classmates’ photo featuring students of a primary school. On the same day, another registered user, placed the names of people who were portrayed at the photograph – including the name and surname of Tomasz W. On 2, 9 and 14 January 2008, Tomasz W. requested Nasza Klasa Sp. z o.o. the removal of his personal data.

In a decision of 27 May 2008, case file DOLiS/DEC-314/08/13239, the GIODO, relying on the provisions of 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, ruled that information on the applicant’s full name, school and class to which he attended, together with his image, are personal data and the data collector is Nasza Klasa Sp. z o.o.

However, the GIODO also ruled that it should be borne in mind that according to the provision 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, Nasza Klasa sp. z o.o. provides electronic services for registered users of the portal website, consisting of the storage of data of these users in the computer system. This activity is the condition to legalize the processing of personal data in accordance with article 23(1) pt. 5 of the PPD. In addition, the GIODO found that in this case the applicant’s rights have not been violated, because the access to its data was limited to a group of people registered on nasza-klasa.pl website.

Tomasz W. asked the GIODO for the retrial. He pointed out that the reasons for the decision have many contradictions, inconsistencies and is ambiguous. He accused the GIODO of laconic and cursory treatment of his case. He again emphasized that his personal data have been published on the nasza-klasa.pl website without his knowledge or consent, in violation of his civil rights and liberties.

After the rehearing of the case, the GIODO annulled the contested decision, and discontinued the proceedings. GIODO claimed that the re-examination of the case leads to the conclusion that the disputed information about Tomasy W. did not fall within the definition of personal data. The name and surname have been given under his old image from many years ago. Hence, the combination of photos from the past, with a name and surname of a person and a primary school, which such person attended did not allow for the identification of a person without excessive costs and time. The findings that the disputed information is not personal data within the meaning of the PPD caused the proceedings in the matter to be groundless and on the basis of article 105 § 1 of the APC, it had to be discontinued.

Tomasz W. lodged a complaint with the Viovodeship Administrative Court in Warsaw. The complainant asked for annulment of the decision of first and second instance. Tomasz W. claimed the violation of the substantive law, i.e. article 6(1) of the PPD, through its improper interpretation, of article 32(1) pt 7 and 8 of that Act, by recognizing that Tomasz W. is not entitled to request cessation of the processing of his data and the right to object, and a breach of article 7 of the APC by not explaining all the relvant facts. Tomasz W. disagreed with the statement of the GIODO that questioned information about his person is not personal data within the meaning of the PPD. He stated that any information about an identified or identifiable individual is personal data. Furthermore, he argued that the claim of the GIODO that the data are available only for specific people – registered users of the portal is not acceptable, because nasza-klasa.pl has no mechanisms for verification of users identity, which makes the questioned data easily accessible for everyone. Moreover, Tomasz W. also argued that a registered user who does not know him would have some difficulty in identifying his person but such obstacles would not happen to a person who knows about Tomasy W., and is looking for additional information.

The Voivodeship Administrative Court in its judgment of 3 March 2009 case file II SA/Wa 1495/08 ruled that the GIODO erred in its decisions, because information about the name and surname of Tomasz W., combined with information about the name and address of the primary school and the determination of the class to which he attended in 1978/79, even if it was thirty years ago, are personal data. According to the Court provisions of article 1 of the PPD introduced the principle of autonomy of human information, meaning the protection of information about human being. This provision is a kind of emanation of the general right guaranteed by the Polish Constitution in article 47, according to which “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”. This means that the protection of personal data is related to the protection of privacy rights. This follows from the wording of article 6 of the PPD, indicating that the personal data concern identified or identifiable natural or legal person and that the identifiable is a person is one whose identity can be determined. From wording of that provisions the VAC concluded that personal data are data that identify a person’s identity. The VAC also relied on the content of recital 12 of 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, which emphasized the protection of all data relating to a person, and therefore also information about someones past.

(12) Whereas the protection principles must apply to all processing of personal data by any person whose activities are governed by Community law; whereas there should be excluded the processing of data carried out by a natural person in the exercise of activities which are exclusively personal or domestic, such as correspondence and the holding of records of addresses

However, in recital 26 of the abovementioned Directive states that data protection rules must apply to any information concerning an identified or identifiable person. In order to determine whether a person is identifiable, all the means which can be used by the controller or any other person to identify a person, should be taken into the account. The rules of data protection do not apply to data rendered anonymously in such a way that a subject of the data can not be identified. The identification of a given person concerns also past information about a specific human being, by which information one can learn about such person’s identity. Accordingly, the VAC held that European law means the protection of personal data as the protection of all the facts concerning the past of a particular person, which corresponds with the content of article 6(2) of the PDP. So this means that such data would also be protected. Referring to the foregoing facts of Tomasz W. case, the VAC ruled that that nasza-klasa.pl website published his image and name. In the opinion of the court these are the personal data which are protected by the PPD, because on their basis one is able to identify given person.

Nasza Klasa sp. z o.o. filed a cassation complaint with the Supreme Administrative Court (SAC) challenging in entirety the judgment of the VAC. The Supreme Administrative Court in a judgment of 18 November 2009, case file I OSK 667/09, rejected the complaint. The SAC held that the primary issue arising in this case was whether a classmates’ picture that was taken thirty years ago, at which Tomasz W. is potrayed, in the circumstances of the case, can be analyzed to determine his identity without necessarily involving excessive resources or time, and therefore, whether the data disclosed in the photo in question, constitutes personal data within the meaning of article 6 of the PPD, and whether it should be protected.

The concept of “personal data” on the Polish law includes any information concerning an individual if it is possible to define its identity and its identification. Personal data is a set of messages about a particular person such integrated that it allows for its individualization. It includes at least information necessary for identification (name, surname, place of residence), but this is not restricted, because it also include further information, strengthening the degree of identification. Such information will also include pictures of the individual, even if they were taken in the past, allowing to identify a person. In a situation where such a photograph is presented with a name and surname of the person portrayed, in a place accessible to an unlimited number of entities, it must be considered that it constitutes personal data subject to protection under the PPD. Mainly, the objective evaluation criteria decides for the qualification of given information as personal data, but it also should comprise of all information, including extralinguistic (context), to which third party may have or has an access. A different approach to the presented issues would maginalize the importance of the laws and it would not relate to its designated function.

Thus it should be considered that the image of Tomasz W. portrayed at the photograph that was taken 30 years ago, affixed with the class, his name and surname, and then published at nasz-klasa.pl website constitutes personal data within the meaning of article 6(2) of the PPD, and the cassation complaint was not justified. The SAC also noted that the consent for the processing of personal data cannot be in any way implied.

The SAC also stressed the fact the Internet as a source of information is increasing on a unknown scale and importance. It provides an access to specific information to a vast number of persons and allows for any of its processing within the meaning of the PPD. At the same time there are not yet developed appropriate mechanisms for the protection of individual rights when those rights have been violated as a result of the disclosure of information on the Internet. Then, it is a great role of law enforcement bodies, including the Inspector General for Personal Data Protection in creating practice to comply with applicable laws also on the Internet. It is an unacceptablr situation in which the entity seeks to remove its image from a particular website, and the administration fails to take action to ensure the protection of civil rights. The image is one of the very personal property rights and lack of consent to its publication, if it is not a public person, is a sufficient reason to believe that regulations of the PPD apply, if the conditions set in the article 6(2) of the PPD have been met. There is a legal sequel to this story. See “Personal data protection, case II SA/Wa 1212/10“.

Personal data protection, case II SA/Wa 71/07

February 12th, 2010, Tomasz Rychlicki

A lawyer representing one Polish entrepreneur, and as you already know personal data of the parties are removed from Polish courts’ judgments, requested the General Inspector for Personal Data Protection (GIODO) to issue an order to Home.pl company from Szczecin, to disclose personal data such as name, surname, the firm, address, office’s seat, phone number and e-mail address of a person, which had only published its caller id, and who registered a certain Internet domain name. The lawyer stated that his client is claiming the right to use the questioned domain name and the requested information is necessary for the initation of the arbitration proceedings before the Court of Conciliation at the the Polish Chamber of Information Technology and Telecommunications.

Home.pl refused to provide the abovementioned personal data, arguing that the parties of the legal relationship arising from the fact of the registration and maintenance of Internet domain names are the Research and Academic Computer Network (in Polish: Naukowa i Akademicka Sieć Komputerowa) – the national registry of the .pl domain, and the domain name subscriber.

The GIODO performed an investigation based on the administrative proceedings regulations. The GIODO did an inspection of the Company’s headquarters and found that Home.pl maintains a separate collection of data of subscribers who have registered their domain names in NASK through Home.pl services. NASK is the national domain name registrar, while Home.pl arranges for the registration and maintenance of Internet domain names. Home.pl represents an applicant for the domain name registration before NASK. A natural or legal person and Home.pl have to establish a legal relationship based on a registration contract in order to register the domain name in NASK. The legal relationship is based on registering and maintaining of the internet domain name. The GIODO found that in this case, the contested domain name was registered by a natural person.

In September 2006, the General Inspector for Personal Data Protection issued an administrative decision which ordered Home.pl to disclose personal data of the individual who registered the Internet domain name in question, the name, surname, address, phone number and e-mail address. Home.pl requested for a retrial of the case. The GIODO upheld the decision and Home.pl filed a complaint against it.

The Voivodeship Administrative Court (VAC) in Warsaw in its judgment of 30 Novmeber 2007 case file II SA/Wa 71/07 ruled that the complaint was based on Article 29(2) in connection with Article 22 of 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.

Article 29
1. In case of providing the access to the data for the purposes other than including into the data filing system, the controller shall disclose the data kept in the data filing system to persons or subjects authorised by the law.
2. Personal data, exclusive of data referred to in Article 27 paragraph 1, may also be disclosed, for the purposes other than including into the data filing system, to persons and subjects other than those referred to in paragraph 1 above, provided that such persons or subjects present reliably their reasons for being granted the access to the data and that granting such access will not violate the rights and freedoms of the data subjects.
3. Personal data are disclosed at written and justified requests, unless the provisions of another law state otherwise. Such requests should include information allowing for identification of the requested personal data within the filing system and indicating their scope and purpose.
4. Disclosed personal data shall be used only pursuant to the purpose for which they have been disclosed.
(…)
Article 22
The proceedings with respect to the matters regulated by this Act shall be conducted pursuant to the provisions of the Code of Administrative Procedure, unless other provisions of the law state otherwise.

According to the VAC, the provisions of Article 29(1) and (2) allow third parties to request the disclosure of personal data for purposes other than inclusion in the collection. It should be noted that these provisions being in force until 1 May 2004, gave no grounds to demand the disclosure if the controller was the private sector. This situation changed after the amendment of 22 January 2004. The Court noted that the request for disclosure of personal data may be filed by any person i.e. natural person, any organizational unit, both public and private. It is important that the possesion of personal data is necessary to achieve intended goals, and the request for personal data is credible and reasonable. Such request does not require a collector to disclosure personal data because it must assess whether the conditions have been met to provide such data according to provisions of Article 29 of the PPD.

1. In case of providing the access to the data for the purposes other than including into the data filing system, the controller shall disclose the data kept in the data filing system to persons or subjects authorised by the law.
2. Personal data, exclusive of data referred to in Article 27 paragraph 1, may also be disclosed, for the purposes other than including into the data filing system, to persons and subjects other than those referred to in paragraph 1 above, provided that such persons or subjects present reliably their reasons for being granted the access to the data and that granting such access will not violate the rights and freedoms of the data subjects.
3. Personal data are disclosed at written and justified requests, unless the provisions of another law state otherwise. Such requests should include information allowing for identification of the requested personal data within the filing system and indicating their scope and purpose.
4. Disclosed personal data shall be used only pursuant to the purpose for which they have been disclosed.

However, the VAC stressed that fact that collector’s discretion cannot mean its arbitrariness. In the case of the unfounded refusal to provide personal data according Article 29 (2) of the PPD, the General Inspector for Personal Data Protection shall have the right – in accordance with Article 18(1) pt. 2 of the PPD – to require the disclosure of personal data.

1. In case of any breach of the provisions on personal data protection, the Inspector General ex officio or upon a motion of a person concerned, by means of an administrative decision, shall order to restore the proper legal state, and in particular:
(…)
2) to complete, update, correct, disclose, or not to disclose personal data,

Undoubtedly, the request for the disclosure of personal data must be credible and legitimate. Thus, if such request is do not precluded by provisions of article 27 of the PPD, the collector must disclose such data.

1. The processing of personal data revealing racial or ethnic origin, political opinions, religious or philosophical beliefs, religious, party or trade-union membership, as well as the processing of data concerning health, genetic code, addictions or sex life and data relating to convictions, decisions on penalty, fines and other decisions issued in court or administrative proceedings shall be prohibited.
2. Processing of the data referred to in paragraph 1 above shall not constitute a breach of the Act where:
1) the data subject has given his/her written consent, unless the processing consists in erasure of personal data,
2) the specific provisions of other statute provide for the processing of such data without the data subject’s consent and provide for adequate safeguards,
3) processing is necessary to protect the vital interests of the data subject or of another person where the data subject is physically or legally incapable of giving his/her consent until the establishing of a guardian or a curator,
4) processing is necessary for the purposes of carrying out the statutory objectives of churches and other religious unions, associations, foundations, and other non-profitseeking organisations or institutions with a political, scientific, religious, philosophical, or trade-union aim and provided that the processing relates solely to the members of those organisations or institutions or to the persons who have a regular contact with them in connection with their activity and subject to providing appropriate safeguards of the processed data,
5) processing relates to the data necessary to pursue a legal claim,
6) processing is necessary for the purposes of carrying out the obligations of the controller with regard to employment of his/her employees and other persons, and the scope of processing is provided by the law,
7) processing is required for the purposes of preventive medicine, the provision of care or treatment, where the data are processed by a health professional subject involved in treatment, other health care services, or the management of health care services and subject to providing appropriate safeguards,
8) the processing relates to those data which were made publicly available by the data subject,
9) it is necessary to conduct scientific researches including preparations of a thesis required for graduating from university or receiving a degree; any results of scientific researches shall not be published in a way which allows identifying data subjects,
10) data processing is conducted by a party to exercise the rights and duties resulting from decisions issued in court or administrative proceedings.

The Court had to consider the question of whether the application met the conditions set in Article 29 of the PPD. The legal representative proved that, the disclosure of personal data of a person who registered the disputed domain because was necessary for the initation of the arbitration proceedings before the Court of Conciliation at the the Polish Chamber of Information Technology and Telecommunications. The Court noted that the arbitration proceedings are held in accordance with Article 1188 § 1 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. The proceedings before the Court of Conciliation starts with the lodging of the statement of claim (the suit), which means that the suit should comply with the conditions laid down in Article 187 § 1 of the CPC. Under that provision, the statement of claim should meet the requirements of the pleading, and it also shall include: clearly defined demand in matters of property rights and the value of the claim, unless the case concerns the amount of money. The suit shall include all facts justifying the request and, if necessary, to justify the jurisdiction of the court. In accordance with Article 126 § 1 pt. 1 of the CPC, every pleading shall also contain, inter alia, the designation of the court to which it is addressed, the name or names of the parties, their legal representatives and/or agents. Therefore, the essential element of the claim for infringement of personal rights is to show the person against whom the request is addressed, i.e. the defendant in future proceedings for infringement of personal rights, and defendant’s address. The VAC found that the request in the Home.pl case was fully justified. The Court also confirmed that Home.pl is the controller within the meaning of Article 7(4) of the PPD, because according to the agreement with NASK, Home.pl decides on the purposes and means of the processing of personal data related to people who registered domain names. Thus, the party of the case was Home.pl, not NASK.