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Archive for: Art. 15 PSEM

Personal interest, case I CSK 542/13

September 17th, 2014, Tomasz Rychlicki

Leszek Czarnecki and his wife Jolanta Pieńkowska sued Grupa o2, the owner and publisher of pudelek.pl website. Mr Czarnecki claimed that articles posted on this website infringed his personal interests by publishing information about social status and a new home, which was built on a grand scale.

The District Court in Warsaw in its judgment of 24 October 2011 case file IV C 1639/10 found the publisher guilty. The court held that the content of articles undermined the prestige of the spouses as they are people commonly known, reputable and rich. The Court ruled that the amount of compensation is up to 200.000 PLN, because, as the judge assessed the higher the prestige of imputed persons is, the higher should be the economic sanction.

Grupa o2 appealed. The Appeallate Court in Warsaw in its judgment case file VI ACa 73/12 ordered owners of both sites to issue an apology but reduced the amount awarded, and ruled that the company has to pay 20.000 PLN for social purpose. Both parties filed cassation complaints.

The Supreme Court in its judgment of 12 September 2014 case file I CSK 542/13 repealed the contested judgment and returned the case for further reconsideration. The reasons were based on procedural grounds. It turned out that the Appeallate court has assessed the evidence, but it did not find its own conclusions. The Court also did not rule on the relationship between comments posted by Internet users and the provisions of Polish Act on Providing Services by Electronic Means that exclude the liability of the ISPs.

Criminal law, case II K 1331/10

March 20th, 2013, Tomasz Rychlicki

Odsiebie.com was a hosting website operated by couple of administrators that were charged by the Prosecutor for fencing of computer programs and aiding in their disposal. The owners were detained for 24 hours and the domain name was locked. The Prosecutor Office was informed about alleged criminal activity by the employees and lawyers representing ZPAV i FOTA – two big Collecting Societies in Poland.

The Regional Court for Wrocław Śródmieście, II Wydział Karny in its judgment of 6 March 2012 case file II K 1331/10 acquitted administrators of all charges. The appeal filed by the Prosecutor Office was dismissed by the District Court in Wrocław in its judgment of 6 February 2013.

Personal interests, case I ACa 689/13

August 1st, 2012, Tomasz Rychlicki

FS File Solutions Ltd. is the owner of a popular hosting website chomikuj.pl that allows for hosting different files by using a simple web interface. The Polish Chamber of Books (PCB) is Poland’s publishing industry trade body that found many of its titles available on chomikuj.pl without the permission of copyright holders. The PCB issued negative press and TV statements regarding chomiku.pl policy and business model. The Company sued the PCB for the infringement of its personal interests. FS claimed that by calling it “pirate service” the PCB infringed on its the company name (firm).

The District Court in Warszawa I Civil Chamber in its judgment of 20 February 2013 case file I C 407/12 ruled that PCB did not infringed personal interests of FS. File Solutions filed an appeal.

The Appeallate Court in Warsaw in its judgment of 10 October 2013 case file I ACa 689/13 returned the case to the District Court.

Personal interest, case IV CSK 665/10

November 7th, 2011, Tomasz Rychlicki

Writing under a pseudonym, Dariusz B. posted a comment on the website “Gazeta online Elbląg 24”. In his post Dariusz B. wrote to the Mayor of the Elbląg town, that he has photographs of people who sit in the city council, and he described the content of these pictures as a “sex scandal”. He noted that the Mayor’s spokesman ignored this case, so he wanted to know what should he do next with such photographs. Other anonymous Internet users posted comments under the post that has been written by Dariusz B. One of them has disclosed who is the author of the post, and also expressed a negative opinion about the post, by calling it a blackmail. This person also suggested that Dariusz B. has used the media for his own purposes in order to manipulate press journalists. The intentions of Dariusz B. and his honesty, were also undermined. The post of Dariusz B. was described as a blatant violation of the law for which he should bear criminal responsibility. “Gazeta online Elbląg 24” is a service available for free. It is operated by the Municipality of the Elblag town. The comment in which personal data of Dariusz B. was disclosed was written from a computer that had the IP address belonging to the organizational unit of the Elblag town. The unit operates wireless Wi-Fi, whose range includes several publicly accessible areas of the building and parking lot adjacent to it. It was not possible to identify the person who posted this comment. The Police, at the request of Dariusz B. commenced an investigation and failed to establish who was the author of the comment, even when the Municipality of Elblag has disclosed all data, including IP addresses. Dariusz B. sued the Municipality of Elbląg for the infringement of his personal interests. The District Court and the Appellate Court dismissed the suit. Dariusz B. filed a cassation complaint.

The Supreme Court in its judgment of 8 July 2011 case file IV CSK 665/10, published in electronic database LEX, under the no. 898708, held that critical comments of the content of post and the very fact of its posting, or disclosure of the name and surname of Dariusz B., was not a violation of his personal interest. However, it was a violation of personal interests (dignity and reputation) when such action has been called illegal activity, fraudulent and manipulative, a blackmail and provocation, which undoubtedly discredited Dariusz B. in public opinion, especially as a social activist, who was active at another online forum. Such statement, not supported by the facts, was unlawful. In the case of an infringement of one’s personal interests, the court may award pecuniary compensation to a person whose personal interests have been infringed, an approriate amount as pecuniary compensation for the wrong suffered or may, on his demand, adjudge an appropriate amount of money to be paid for a social purpose chosen by him, irrespective of other means necessary to remedy the effects of the infringement. Not only the person who directly caused the damage shall be liable, but also any person who has induced or helped another person to cause the damage, including those who consciously took benefit from a damage caused to another person. However, the Court ruled that there was no normal causal link between the actions of the Municipality of Elblag, and the damage suffered by Dariusz B., and such a link occurs only when the action is directed to accomplish the tortious activity.

By opearating a website “Gazeta online Elbląg 24” and a discussion forum, the Municipality of Elbląg was deemed as the Internet services provider. However, such ISPs, are responsible for the violation of personal rights performed by others only when they knew that the post violates these interests and they did not immediately prevent the access to the post. Therefore, the ISP is not obliged to control the content of posts written by users on a free discussion forum website. Taking into account the nature and purpose of services based on making available free of charge of a discussion website, and considering also that there were no general rules for the management of such services and systems, the Court held that there were no grounds to impose a general obligation on the ISP to provide tools to identify users of such a website. The Court ruled that the anonymity of persons using the publicly available online news website, is a generally accepted principle and essence of this type of service. It provides freedom of expression, which is the goal of such websites. Consequently, the Court held that the ISP that created and provides free access to the website with a discussion forum, has no obligation to ensure the ability to identify the users who maded posts on this website.

Personal interest, case I ACa 1273/11

October 3rd, 2011, Tomasz Rychlicki

Mr Andrzej Jezior is a councillor of the Town Council in Ryglice, and he also runs a personal website available at andrzejjezior.blog.onet.pl. He often post comments regarding affairs of local life of the young Ryglice town. Some readers of his website posted negative comments on Bernard Karasiewicz, who was at this time the mayor of this small town. Despite the fact that Mr Jezior removed these comments, Mr Karasiewicz sued for violation of his personal interest. The suit was based on regulations included in the Polish Act on Elections to municipal councils, county councils and regional assemblies, in connection with regulations included in the Polish Act on the direct elections of village-mayor (prefect), town mayor, president of a city.

The District Court in Tarnów in its order of 15 November 2010 case file I Ns 162/10 agreed with the mayor and ordered Mr Jezior to publish an apology on his website, prohibited him from further distribution of these comments and ordered him to pay 5000 PLN for Caritas of the Tarnowska diocese and the case expenses in the amount of 240 PLN. The Court ruled, that Mr Jezior should be held liable for the comments that appeared on his website, because they came from people enjoying freedom of expression. Running a website that allows for posting such comments should be considered a wrongful action that is contrary to public policy and the principles of social coexistence. Mr Jezior appealed.

The Appeallate Court in Krakow in its order of 17 November 2010 case file Acz 1457/10 dismissed the complaint.

Mr Karasiewicz lost local elections in 2010. He sued Mr Jezior for violation of his personal interest again, alleging the comments caused that he was not re-elected to serve as a mayor of Ryglice. This time the suit was based on the regulations included in the Civil Code.

The District Court in Tarnów in its judgment of 3 October 2011 case file I C 319/11 ordered the defendant to publish an apology in the local press for “distributing” content that infringes upon the personal interests of the plaintiff and his family, to pay 1000 PLN compensation and reimbursement of the proceeding costs in the amount of 650 PLN. The Court dismissed the claim where the plaintiff demanded the payment of compensation in the amount of 10.000 PLN. The Court ruled that defendant is responsible and he should bear the consequences that he has made a forum that was available for the publication of any message. Mr Jezior appealed. The Appeallate Court in Kraków in its judgment of 19 January 2012 case file I ACa 1273/11 reversed the judgment of the District Court and dismissed the suit.

Personal interest, case I ACa 544/10

March 22nd, 2011, Tomasz Rychlicki

A critical article was published in a paper magazine entitled “Forum Akademickie”. It concerned one of the scientist from the University of Opole. Some offensive comments appeared also at magazine’s online forum. These entries were removed after the administrator received a notice from the researcher. There was another offensive entry published on 30 November 2008, but on the same day it has been removed by a site administrator. The researcher sued the editor for allowing for the publication of inaccurate and defamatory comments which in consequence infringed on his personal interests. The District Court in Lublin dismissed the claim as unjustified. The Court held that according to regulations included in Article 14 and 15 of the PSEM the defendants cannot be held responsible because they prevented the access to questioned data/entries. The plaintiff appealed.

The Appellate Court in Lublin in its judgment case file I ACa 544/10 held that defendants should be held liable because they provided a website that was used for discussion and exchange of different views and they posted also a warning message about the moderation or deletion of entries that will not fit for certain rules, although according to the Court they were not obliged to do so, but they also employed for this purpose a person whose duty included monitoring the entries and the removal of those that were posed not in accordance with law and social norms. Therefore, The Court ruled that defendants had knowledge of illegal entries. As a result, they were responsible for failing to remove them without delay and to do so only after many months, at the request of the plaintiff.

The Court ordered the defendants (the editor of the magazine and its publisher) to publish under the article the statement of apology and to pay jointly 5.000 PLN to charity. The judgement is not final.

Internet websites, case I C 1532/09

March 13th, 2010, Tomasz Rychlicki

The Observatory of Media Freedom in Poland run by the Helsinki Foundation for Human Rights reported on a case of Augustyn Ormanty, the mayor of Kalwaria Zebrzydowska town, who sued Tomasz Baluś, the administrator of naszakalwaria.pl website, for personal rights infringement after he found that the website hosted defamatory comments directed to his person. Mr. Ormanty decided to request the court to order the removal of 18 comments because he received negative response from Tomasz Baluś who claimed that these questioned statements put in the form of comments to information published at his website, are the individual opinions of people who wrote it, for the content of which, Tomasz Baluś is not responsible, because they are owned by their authors.

The District Court I Civil division in Kraków in a judgment of 11 MArch 2010 case file I C 1532/09 ruled that naszakalwaria.pl website cannot be deemed as the press according to provisions of the Polish Act of 26 January 1984 on Press law – APL – (in Polish: ustawa Prawo prasowe), published in Journal of Laws (Dziennik Ustaw) No. 5, item 24, with subsequent amendmets, because it did not meet the criterion of periodicity. The court noted that naszakalwaria.pl website is rather a collection of publications and serves as a wall on which people are able to post their comments. The court emphasized that the purpose of Internet portals, such as naszakalwaria.pl is primarily to initiate and shape public debate on issues important to the local community. The court added that the Internet is, in principle, free from control and could be subject to control only, if it fits the regulation provided in the APL. The court also stated that Augustyn Ormanty failed to prove that the offensive – in his opinion – comments related to the facts. According to the Court, they were rather opinions, which in principle cannot be judged based on the criterion of truth and falsehood.

In addition, the court held that Tomasz Baluś had a limited capacity for meticulousy checking and editing of the entries appearing on the forum of his website because of their large numbers. The court stated that the measures taken by the Mr. Baluś to search and control the entries for vulgarity and to remove obviously insulting comments were sufficient. According to the Court, Mr. Ormanty had a possibility and the right to request the removal of comments he found insulting, based on provisions of Article 14 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.

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.

The court pointed out to the argument stating that the mayor is a public figure who must reckon with the fact that its activities may be subject to criticism. As a public figure, Mr. Ormanty should show greater resistance to critical opinions, negatively evaluating the performance of the functions entrusted to him. In conclusion, the Court added that the law has not kept pace with the development of modern technology and therefore, it does not precisely regulate the issues of freedom of expression in the Internet. Therefore, the careful evaluation of such situations, is entrusted to the judges. Their task is to ensure and guarantee the freedom of expression in similar cases.