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Archive for: Art. 105 §1 APC

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“.

Industrial design law, case II GSK 1034/08

January 20th, 2010, Tomasz Rychlicki

The Supreme Administrative Court in its judgment of 17 June 2009 case file II GSK 1034/08 ruled that it is obvious that the Polish Patent Office should first examine whether there is a right for which the applicant files request for invalidation, then the PPO should examine the legal interest of the applicant, and only then it should consider whether the legal grounds for invalidity are well founded. If at the time of examination of the request for invalidation, that right at issue no longer exists, due to the fact that its earlier decision on the grant of such right has been annulled, any further action is unnecessary and inadmissible as irrelevant. The PPO should terminate the proceedings without examination of the legal interest of the applicant and without considering the merits of the grounds of law. The dispute between the parties does not start due to the lack of action and any arguments of any party are no longer considered by the PPO. In this situation, there is no “winner” or “loser” because the merits of the request are not subject to examinations.

Rp-9476

This judgment concerned the industrial design “Opakowanie zwłaszcza na lody” (in English: Package especially for ice creams), Rp-9476. See also “Polish regulations on industrial designs” and “Polish case law on industrial designs“.

Trade mark law, case II GSK 668/08

March 28th, 2009, Tomasz Rychlicki

On 25 January 2005, Société des Produits Nestlé S.A. applied to register the word trade mark CHOKELLA Z-290315 in Class 30, for goods such as: breakfast cereals, muesli, corn flakes, cereal bars, cereal flakes, cereal preparations, food products based on rice, flour or cereals, also in the form of ready-to-use meals. Nestlé was aware that there is a possiblity that the Polish Patent Office rejects the application because of the earlier registration of the trade mark CHOKELLA R-85159, registered with priority on 30 August 1993 for the Company Kelsen The International Bakery A/S from Norre-Snede, which during Nestle’s application was under the grace period based on the provisions of Article 132(1)(iii) of the Polish Act of 30 June 2000 on Industrial Property Law – IPL – (in Polish: ustawa Prawo własności przemysłowej), published in Journal of Laws (Dziennik Ustaw) of 2001 No 49, item 508, consolidated text of 13 June 2003, Journal of Laws (Dziennik Ustaw) No 119, item 1117, with subsequent amendments.

2. A right of protection for a trade mark shall not be granted, if the trade mark is:
(iii) a trade mark earlier registered in the Republic of Poland, whose registration has terminated, provided that an interval between the date of lapse of the right of protection for the trade mark and the date on which a similar trade mark has been applied for by another party, is, subject to Article 133, no longer than two years.

On 3 February 2005, Nestle filed before the PPO a request for a declaratory decision which would affirm the lapse of the right of protection for the trade mark CHOKELLA R-85159, because of its non-use. According to Nestle, the declaratory decision should be effective from the date when an event which involves the effect of the expiry occured, i.e., at the date when the 5-year time period of non-use of a trade mark expired.

On January 2006, The PPO, dismissed the proceedings on the grounds that it was pointless, since before the date of Nestle’s request the rights of protections for CHOKELLA trade mark expired on 30 August 2003, under the law, due to the failure to extend the protection for the next ten years. It was unacceptable for the PPO to decide on the lapse of the rights of protecion for a trade mark, which did not exist at the date of application for such declaration. The PPO indicated that Nestle’s request was filed almost two years after the expiry of the CHOKELLA trade mark, so dismissal of the proceedings was justified because of the lack of subject that would be suitable for a substantive judgment. The PPO ruled that the right of protection shall expire on the date of the decision with effect from the date of filing a request to declare the right of protection for the trademark lapsed. So the decision has a constitutive nature and is applicable ex tunc. The PPO did not agree with Nestle’s argument, and the construction and interpretation of the provisions of Article 169(2) of the IPL.

The Patent Office shall make a decision on the lapse of the right of protection for the trade mark at the request of any party having a legitimate interest therein.

The PPO decided that this prejudge the declaratory nature of the decision on the lapse of the rights of protection and it differs from the provisions afforded in the old Polish Act of 31 January 1985 on Trade Marks – TMA – (in Polish: Ustawa o znakach towarowych), published in Journal of Laws (Dziennik Ustaw) No 5, item 15, with subsequent amendments.

Article 25.
The right deriving from registration of a trade mark shall lapse:
(i) on expiry of the term of protection;
(ii) on relinquishment of the right by the person entitled under the registration of the trade mark;
(iii) on failure to use the mark;
(iv) on loss of sufficient distinctiveness of the trade mark;
(v) on termination of economic activity on the part of the owner of the right deriving from registration of the trade mark.

Article 26.
In those cases referred to in section 25, items ii) to v), the Patent Office shall cancel the right deriving from registration of the trademark.

Article 30.
(1) Any person having a legitimate interest may submit a request for confirmation of lapse or a request for annulment of the right deriving from registration of a trade mark.

In the PPO’s opinion the provisions of article 169(2), beside different nomenclature of institutions (i.e. registration rights in the TMA and the rights of protection in the IPL), are identical and, even if the TMA did not indicate the date on which the lapse of registration rights or rights of protection, the legal doctrine and the case-law have established a method of calculating such date based on a specific event, for which it is considered the date of filing the request before the Patent Office to decide on the lapse of the right of protection for the trade mark.

Nestle filed a complaint before the Voivodeship Administrative Court in Warsaw, and argued that, contrary to the PPO findings, the IPL quite differently regulates the rules of declaration on the lapse of the right of protection for the trade mark. The Office shall issue a decision on the lapse of the rights of protection for trade mark and the provisions of Article 169(2) of the IPL indicates clearly that the decision is a declaratory act with a constitutive effect, that is, the decision itself, does not abolish the rights, but merely states that the right is expired under the law, which has effect for third parties from the time it was decided.

The Voivodeship Administrative Court in Warsaw in its judgment of 12 December 2007 case file VI SA/Wa 791/07 dismissed the complaint. The Court agreed with the PPO’s findings. Nestle filed a cassation complaint before the Supreme Administrative Court.

The Supreme Administrative Court in its judgment of 21 January 2009 case file II GSK 668/08 annulled the ruling of the Voivodeship Administrative Court. First, the Court noted that the Supreme Administrative Court in its judgment of 23 April 2008 case file II GPS 1/08 held that according to the provisions of Article 169(1)(i) of the IPL, the date of lapse of the right of protection for a trade mark is set on the last day of a period of five successive years, counting from the first date of non-use. See also “Trade mark law, case II GPS 1/08“. The SAC ruled that aforementioned judgment can not be excluded from the examination of the matter of Nestle’s complaint. According to the Court, it is accurate and consist of compelling arguments that are sufficient to answer the question formulated in Nestle case. The Court held that the similarity of the nature of “industrial property” within the meaning of property in the civil law context is in the exclusive use of goods that are understood as property, the beneficial use and disposal of such goods. However, the industrial property differs because its formal nature that is resulting from the relationship with a decision on granting the rights of protection, invalidation and the lapse of rights of protection. The decision to grant the rights of protection for a trade mark mark is clearly a constitutive act creating the legal status for a person. Declaratory decisions can not determine the occurrence of the new legal situation, but must refer to another fact or event occurring earlier in time and combine them with the rights or duties of the entity (legal or natural person). The vague regulations of the TMA encouraged the formulation of views on the constitutive nature of the decision on the lapse of the registration rights of a trade mark under article 26 and 30 of the TMA. The SAC did not agree with two separate opinions issued by judges who were appointed to decide in case II GPS 1/08 and article written by professor Ryszard Skubisz and Marcin Trzebiatowski in which the authors provided examples on declaratory and constitutive nature taken from family law or labour law. According to the Court, the difficulties arise when the vague provisions of formal law create the need for an interpretation if, in connection with the answer to the question of when and on what basis (fact, event, operation), the decision has constitutive or declaratory nature. It was incomprehensible for the SAC to give the examples of judgments of nullity of marriage or fatherhood, the effects of which can not be transferred by the declaratory act on the life of the party in the family and the society. The Court held that similarities between industrial property and the instutution of the property taken from the civil law (property and ownership of tangible goods) should be taken into account to justify the recognition of decision on the lapse of the rights of protection as declaratory one instead of the principles of family law. The Court analyzed the nature of such decision in the scope of the property law rules i.e. the acquisition of property (perpetual use of the property or servitude of the ground) is decided by the declaratory ruling of the civil court following the expiry of the last day of the period when such possession is required by the formal law. The SAC also stated that the day of filing the application for declaration on lapse of the rights of protection does not affect the date of expiry of the right, because it is initiating administrative action on the request of the parties. Whether and when the rights of protection shall lapse should be declared by the findings made during the proceedings for the purposes of the law.