Archive for: Polish Act on Protection of Personal Data

Next posts »

Personal data protection, case I OSK 174/08

September 26th, 2009, Tomasz Rychlicki

The biggest Polish telecommunication company – Telekomunikacja Polska S.A. posted on its website an offer to sell its databases. This offer was addressed to research and telemarketing companies, BTL advertising agencies, insurance companies and banks. TP proposed a disclosure of private telephone numbers of its subscribers as part of the database. Through this service the company was preparing a database of phone numbers compatible with the order placed and then it passed the database on a CD for a client with a protocol of receipt. The phone numbers could be selected or sorted according to geographical criteria.

The Inspector General for Personal Data Protection ordered not to disclose of personal data of subscribers of Telekomunikacja Polska’s who are consumers within the meaning of Article 221 of the Civil Code – CC – (in Polish: Kodeks Cywilny) of 23 April 1964, Journal of Laws (Dziennik Ustaw) No. 16, item 93, with subsequent amendments, to third parties in the future.

Article 221
The consumer shall be deemed to be any natural person who performs acts in law which are not directly connected with his economic or professional activity.

The prohibition was not allowed without fulfilling one of the conditions of Article 23(1) of the Act of 29 August 1997 on the Protection of Personal Data – PPD – (in Polish: Ustawa o ochronie danych osobowych), Journal of Laws (Dziennik Ustaw) of October 29, 1997, No. 133, item 883, unified text published in Journal of Laws (Dziennik Ustaw) of July 6, 2002, No. 101, item 926, with subsequent amendments.

Article 23
1. The processing of data is permitted only if:
1) the data subject has given his/her consent, unless the processing consists in erasure of personal data,
2) processing is necessary for the purpose of exercise of rights and duties resulting from a legal provision,
3) processing is necessary for the performance of a contract to which the data subject is a party or in order to take steps at the request of the data subject prior to entering into a contract,
4) processing is necessary for the performance of tasks provided for by law and carried out in the public interest,
5) processing is necessary for the purpose of the legitimate interests pursued by the controllers or data recipients, provided that the processing does not violate the rights and freedoms of the data subject.

The GIODO held that according to Article 159(1) of the Polish Act of 16 July 2000, Telecommunications Law – TLA – (in Polish: Prawo telekomunikacyjne), published in Journal of Laws (Dziennik Ustaw) No 171, item 1800 with later amendments, phone numbers are deemed as the telecommunications secrecy. Telekomunikacja Polska S.A. filed a complaint against this decision. The Voivodesjip Administrative Court in Warsaw in its judgment of 12 November 2007 case file II SA/Wa 1252/07 rejected this case and TP S.A. decided to file a cassation complaint.

The Supreme Administrative Court in its judgment of 26 January 2009 case file I OSK 174/08 rejected the cassation and held that Article 159(1) TLA provides for stronger data protection than the provisions of Article 23 of the PPD and therefore it will be used as a basis for legalizing the processing of telecommunications secrecy.

See also “Polish regulations on personal data protection” and “Polish case law on personal data protection“.

Categories: Art. 12(2) PPD | Art. 159 TLA | Art. 18 PPD | Art. 192 TLA | Art. 210 TLA | Art. 22¹ CC | Art. 23 PPD | Art. 26 PPD | Art. 5 PPD | Inspector General for Personal Data Protection | Polish Supreme Administrative Court.

Personal data protection, case II SA/Wa 1495/08

March 30th, 2009, Tomasz Rychlicki

The Voivodeship Administrative Court in Warsaw in its judgment of 3 March 2009, case file II SA/Wa 1495/08 decided on the protection of personal data and providing and operating online services such as websites about users’ classmates. The VAC ruled that in accordance with article 6(2) of the Polish Act of 29 August 1997 on the Protection of Personal Data – PPD – (in Polish: Ustawa o ochronie danych osobowych), unified text published in Journal of Laws (Dziennik Ustaw) of 6 July 2002, No. 101, item 926, with subsequent amendments, not only information on the current situation of an individual decide whether one is dealing with personal data, but also information relating to what a person did and who one was in the past. It means that such data are protected under the Act on Protection of Personal Data.

See also “Polish regulations on personal data protection” and “Polish case law on personal data protection“.

Categories: Art. 6 PPD | EU law | Inspector General for Personal Data Protection | legal regulations on computer networks | personal data | personal rights or interests | Polish Act on Protection of Personal Data | Polish courts | Polish law | telecommunication law | Voivodeship Administrative Court.

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 the Polish Civil Code in article 23. 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 on Authors Rights and Neighbouring Rights – ARNR – (in Polish: ustawa o prawie autorskim i prawach pokrewnych) of 4 February 1994, 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.

Categories: Art. 23 CC | Art. 24 CC | Art. 47 Constitution | Art. 54 Constitution | Art. 81 ARNR | Art. 83 ARNR | defamation | European Convention on Human Rights | Inspector General for Personal Data Protection | Polish Act on Authors Rights and Neighbouring Rights | Polish Act on Press Law | Polish Act on Protection of Personal Data | Polish Appeallate Court | Polish Civil Code | Polish Constitution | Polish courts | Polish Criminal Code | Polish law | press law | right of publicity | US law.

Next posts »