Archive for: telecommunication law

Criminal law, case IV K 875/07

September 19th, 2012, Tomasz Rychlicki

A person, who was working in a call center of one of the Polish telecommunication company, has used social service offered by that company and sent to subscribers of the telecommunications company a text message in which he made derogatory statements regarding another person. This person felt insulted and brought private charges based on the provisions of Article 212 § 2 of the Criminal Code – CRC – (in Polish: Kodeks Karny) of 6 June 1997, published in Journal of Laws (Dziennik Ustaw) No 88, item 553, with subsequent amendments.

The Regional Court for Warszawa City IV Criminal Division in its judgment of 5 July 2012 case file IV K 875/07 sentenced the accused person to a fine. The Court held that the sent message humiliated this person in public and exposed to the loss of trust necessary for the conduct of his business. The case was heard on 33 hearings.

Consumer protection, case XVII Amc 5817/11

August 26th, 2012, Tomasz Rychlicki

The Polish Court of Competition and Consumer Protection in its judgment of 31 May 2012 case file XVII Amc 5817/11 held that an entrepreneur cannot include in its terms of telecommunication services any regulations and provisions which would release it from the liability for any loss due to lack of customer access to the service provided. Activities that intend to misinformation, confusion, misconception or are directed to exploit ignorance or naivety of the customers and consumers, are contrary to good customs.

Personal interest, case II C 626/11

April 27th, 2012, Tomasz Rychlicki

In 2007, for about 6 months, the Polish Central Anti-corruption Bureau collected telecommunications data, including billings and location data from Base Transceiver Stations, of a Polish journalist Bogdan Wróblewski. Mr Wróblewski sued the Polish State Treasury which according to the Polish law represents the Polish state in certain legal aspects..

The District Court in Warsaw in its judgment of 26 April 2012 case file II C 626/11 has confirmed that the Central Anti-corruption Bureau violated personal interests of a journalist by collecting his telecommunications data. The Court pointed out that privacy is a fundamental human right and its breach must be justified and proportionate. The permission is limited “objectively” to offenses of corruption and “qualitatively” – its condition should be determined by the fact that there are not available less invasive means of control which could be useful. The process of receiving of telecommunications data must take into account these limitations each time it is initiated.

Civil law, case VI C 143/11

March 24th, 2012, Tomasz Rychlicki

The Polish company InternetQ Poland Sp. z o.o. from Warszawa has sent text messages (SMS) to an unspecified group of people suggesting that they won prize of 20.000 PLN in some competition. The only tricky requirement was to send an empty text message as a reply. One of the recipients sued the company in order to force it to pay the prize. He based his claims on the provisions of Articles 353 and 354 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 353. § 1. An obligation shall consist in that the creditor may demand a performance from the debtor, and the debtor is obliged to provide the performance.
§ 2. The performance may consist in act or omission.

Article 3531. The parties to a contract may arrange the legal relationship as they deem proper on the condition that the contents or the purpose of that contract are not contrary to the nature of the relationship, with statutory law, and with the principles of community life.

Article 354. § 1. The debtor must discharge his obligation in accordance with its contents and in a manner complying with its socioeconomic purpose and the principles of community life, and if there are established customs in that respect, also in a manner complying with those customs.
§ 2. The creditor shall be obliged to co-operate in the discharge of the obligation in the same way.

The Regional Court in Warszawa for Warszawa-Śródmieście in its judgment of 3 November 2011 case file VI C 143/11 held that consumer’s claims are well founded and awarded on his behalf 60.000 PLN. InternetQ filed an appeal.

Personal interest, case II SA/Wa 364/11

October 13th, 2011, Tomasz Rychlicki

On January 2010, a couple of entries signed by the nick “arfulik” appeared on few Polish websites. The author wrote critically about the company Bavaria Consulting and a person who is a member of the board. It seemed that this unknown author conducted a competitive activity. Bavaria and Krystiana D. decided to sue for the infringement of personal interest. They needed personal data of a person who wrote questioned comments. Telekomunikacja Polska (TP), one of the largest ISPs, refused to provide such information, referring to the telecommunications confidentiality included in the Article 159 of the Polish Act of 16 July 2000 on Telecommunications Law – TLA – (in Polish: Prawo telekomunikacyjne), published in Journal of Laws (Dziennik Ustaw) No 171, item 1800 with subsequent amendments. Allegedly slandered filed a complaint to the Inspector General for Personal Data Protection (GIODO). The GIODO ordered the disclosure the personal data but he overturned this decision after TP filed a request for reconsideration. The GIODO decided that such information is subject to the telecommunications confidentiality and found no reason to disclose it. The offended persons lodged a complaint against this decision.

The Voivodeship Administrative Court in its judgment of 7 October 2011 case file II SA/Wa 364/11 dismissed it, and ruled that the intention of bringing action against the author of a forum post or comment is not a sufficient condition to disclose personal data. One has to file a suit for protection of personal interest. Only then, a court in order to avoid procedural deficiency, will summon the telecommunications operator to disclose personal data of the author of the questioned post.

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

Telecommunications law, case C‑99/09

July 2nd, 2010, Tomasz Rychlicki

The Court of Justice of the European Union in its judgment of 1 July 2010, Case C‑99/09, Polska Telefonia Cyfrowa sp. z o.o. v. Prezes Urzędu Komunikacji Elektronicznej, ruled that article 30(2) of Directive 2002/22/EC of the European Parliament and of the Council of 7 March 2002 on universal service and users’ rights relating to electronic communications networks and services (Universal Service Directive) is to be interpreted as obliging the national regulatory authority to take account of the costs incurred by mobile telephone network operators in implementing the number portability service when it assesses whether the direct charge to subscribers for the use of that service is a disincentive. However, it retains the power to fix the maximum amount of that charge levied by operators at a level below the costs incurred by them, when a charge calculated only on the basis of those costs is liable to dissuade users from making use of the portability facility.

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“.

Telecommunication law, case I CSK 332/08

February 9th, 2009, Tomasz Rychlicki

The judgment of the Polish Supreme Court of 5 February 2009, case file I CSK 332/08 has been aptly commented in the title of Rzeczpospolita’s article “It is not allowed to set traps for subscribers“. Judge Krzysztof Pietrzykowski pointed out that the judgment is also about the prevention, because such cases may still occur. The operator, which benefits from providing customers with high-rate services has an obligations/duty to protect its subscribers against such traps. The principle should be different than the one that was used by TP SA (Telekomunikacja Polska S.A.). The blockade for such services should not be set on the customer’s request, it should be established by default and removed at customer’s request.

Telecommunications law, case C-227/07

November 18th, 2008, Tomasz Rychlicki

The Court of Justice of European Communities in its judgment in case C‑227/07, Commission of the European Communities v. Republic of Poland, held that, by failing to transpose correctly Article 4(1) of Directive 2002/19/EC of the European Parliament and of the Council of 7 March 2002 on access to, and interconnection of, electronic communications networks and associated facilities (Access Directive), the Republic of Poland has failed to fulfil its obligations under that Directive.

US case law on computers and IT

February 28th, 2008, Tomasz Rychlicki

Last updated on 16 January 2010.

This short compilation of US computer (IT, Internet, cyberlaw, telecommunication) case law will be also available and under later developement on my new Wiki system.

I. Jurisdiction
II. Contracts
III. Trespass to chattels
IV. Intellectual Property
V. Regulating content and speech
VI. Privacy
VII. Computer and Internet crimes
VIII. E-government
IX. Litigation


A. Specific jurisdiction.

B. General jurisdiction

C. Criminal analogy

D. Enforcement

  • Louis Feraud Int’l S.A.R.L. v. Viewfinder Inc., 406 F. Supp. 2d 274 (S.D.N.Y. 2005).


A. Browserwrap licenses

  • Pollstar v. Gigmania Ltd., 170 F. Supp. 2d 974 (D. Cal. 2000).
  • Specht v. Netscape Communs. Corp., 150 F. Supp. 2d 585 (S.D.N.Y. 2001).
  • Ticketmaster Corp. v. Tickets.Com, Inc., 2000 U.S. Dist. LEXIS 12987 (D. Cal. 2000).
  •, Inc. v. Verio, Inc., 126 F. Supp. 2d 238 (S.D.N.Y. 2000).
  • Comb v. Paypal, Inc., 218 F. Supp. 2d 1165 (D. Cal. 2002).
  • Cairo, Inc. v. Crossmedia Servs., 2005 U.S. Dist. LEXIS 8450 (D. Cal. 2005).

B. Shrinkwrap and clikwrap licenses

C. Terms Of Service

  • Oestreicher v. Alienware Corp., 502 F. Supp. 2d 1061 (D. Cal. 2007)

D. Software licenses

E. FLOSS licenses

  • Computer Assocs. Int’l v. Quest Software, Inc., 333 F. Supp. 2d 688 (D. Ill. 2004).
  • Planetary Motion, Inc. v. Techsplosion, Inc., 261 F.3d 1188 (11th Cir. 2001).
  • Progress Software Corp. v. MySQL AB, 195 F. Supp. 2d 328 (D. Mass. 2002).
  • SCO Group, Inc. v. International Business Machines Corp., Not Reported in F.Supp.2d, 2005 WL 318784 (D.Utah, 2005).
  • Wallace v. Free Software Found., Inc., 2006 U.S. Dist. LEXIS 53003 (D. Ind. 2006).
  • Wallace v. IBM, 467 F.3d 1104 (7th Cir. 2006).

F. Contractual and statutory liability for defective software

  • Kaczmarek v. Microsoft Corp., 39 F. Supp. 2d 974 (N.D. Ill. 1999).
  • In re AOL, Inc. Version 5.0 Software Litig., 168 F. Supp. 2d 1359 (S.D. Fla. 2001).
  • In re SONY BMG CD Technologies Litigation, 2005 U.S. Dist. Ct. Motions 9575, 2006 U.S. Dist. Ct. Motions LEXIS 9329, (S.D.N.Y. 2006).

G. Auction sites and contracts

  • Perez v. Hung Kien Luu, 2007 Tex. App. LEXIS 8670 (Tex. App. 2007)


A. Trespass involving spam

  • Compuserve Inc. v. Cyber Promotions, 962 F. Supp. 1015 (D. Ohio 1997).
  • America Online v. LCGM, Inc., 46 F. Supp. 2d 444 (D. Va. 1998).

B. Trespass to online databases


A. Copyright
1. Protection of computer software

2. Reverse engineering, technological protection measures, anti-circumventions (17 U.S.C. §§ 1201-1204)

3. Different copyright infringement issues (civil actions, DMCA, websites)

  • L.A.Times v. Free Republic, 54 U.S.P.Q.2D (BNA) 1453, 2000 U.S. Dist. LEXIS 5669 (D. Cal. 2000).
  • Umg Recordings v., Inc., 92 F. Supp. 2d 349 (S.D.N.Y. 2000).
  • A&M Records v. Napster, 239 F.3d 1004 (9th Cir. 2001).
  • MGM Studios, Inc. v. Grokster, Ltd., 545 U.S. 913 (2005).
  • Tur v. Youtube, Inc., 2007 U.S. Dist. LEXIS 50254 (D. Cal. 2007).
  • Biosafe-One, Inc. v. Hawks, 524 F. Supp. 2d 452 (D.N.Y. 2007).

4. Derivative Works issues (framing, deep links)

  • Futuredontics, Inc. v. Applied Anagramics, 45 U.S.P.Q.2D (BNA) 2005, 1998 U.S. Dist. LEXIS 2265 (C.D. Cal. 1998).
  • Ticketmaster Corp. v., Inc., 54 U.S.P.Q.2D (BNA) 1344, 2000 U.S. Dist. LEXIS 4553 (C.D. Cal. 2000).
  • Intellectual Reserve, Inc. v. Utah Lighthouse Ministry, Inc., 75 F. Supp. 2d 1290 (D. Utah 1999).
  • Digital Equip. Corp. v. AltaVista Tech., 960 F. Supp. 456 (D. Mass. 1997).
  • Nissan Motor Co. v. Nissan Computer Corp., 2000 U.S. App. LEXIS 33937 (9th Cir. 2000).

5. Communication Act, satellite programming

B. Trademarks (domain names and unfair competition, search engines and trademarks, keywords)
1. Domain names as trademarks

2. Cybersquatting

3. Free speech and fair use of trademarks in domain names

C. Databases

D. Patents (software patents and business models patents)

E. Trade secrets


A. Pornography

B. Defamation and information torts

C. Spam

D. Liability of internet service providers

VI. PRIVACY (cookies, adware, spyware)

A. Cookies, adware

  • In re Doubleclick Privacy Litig., 154 F. Supp. 2d 497 (S.D.N.Y. 2001).
  • In re Intuit Privacy Litig., 138 F. Supp. 2d 1272 (C.D. Cal. 2001).
  • Directv, Inc. v. Jae Sun Chin, 2003 U.S. Dist. LEXIS 15815 (W.D. Tex. 2003).

B. Spyware

  • Specht v. Netscape Communs. Corp., 150 F. Supp. 2d 585 (S.D.N.Y. 2001).
  • Specht v. Netscape Communs. Corp., 306 F.3d 17 (2d Cir. 2002).
  • Sotelo v. DirectRevenue, LLC, 384 F. Supp. 2d 1219 (N.D. Ill. 2005).

C. Other issues
1. Posting different types of information

  • Michaels v. Internet Entertainment Group, 5 F. Supp. 2d 823 (D. Cal. 1998).
  • In the Matter of Geocities, 127 F.T.C. 94 (F.T.C 1999).
  • Remsburg v. Docusearch, Inc., 149 N.H. 148 (N.H. 2003).
  • Topheavy Studios, Inc. v. Doe, 2005 Tex. App. LEXIS 6462 (Tex. App. 2005).
  • John Doe No. 1 v. Cahill, 884 A.2d 451 (Del. 2005).
  • Federal Trade Commission, Gateway Learning Corporation; Analysis to Aid Public Comment, 69 Fed. Reg. 42176, (July 14, 2004).
  • Lambert v. Hartman, 2008 U.S. App. LEXIS 4019 (6th Cir. 2008).

2. Data retention and interception (administrative, civil and criminal aspects)


A. Hacking (system breach and/or data manipulation, etc.)

  • State v. McGraw, 480 N.E.2d 552 (Ind. 1985).
  • State v. Riley, 121 Wn.2d 22 (Wash. 1993).
  • Thrifty-Tel, Inc. v. Bezenek, 46 Cal. App. 4th 1559 (Cal. Ct. App. 1996).
  • United States v. Sablan, 92 F.3d 865 (9th Cir. 1996).
  • Sherman & Co. v. Salton Maxim Housewares, Inc., 94 F. Supp. 2d 817 (E.D. Mich. 2000).
  • Thurmond v. Compaq Computer Corp., 171 F. Supp. 2d 667 (D. Tex. 2001).
  • United States v. Ivanov, 175 F. Supp. 2d 367 (D. Conn. 2001).
  • Guin v. Brazos Higher Educ. Serv. Corp., 2006 U.S. Dist. LEXIS 4846 (D. Minn. 2006).
  • In the Matter of BJ’S Wholesale Club, Inc., 2005 FTC LEXIS 134 (F.T.C 2005).
  • United States v. Heckenkamp, 482 F.3d 1142 (9th Cir. 2007).

B. Dos, DDoS, botnets

  • Tyco Int’l (US) Inc. v. Doe, 2003 U.S. Dist. LEXIS 25136 (S.D.N.Y. 2003).
  • United States v. Ancheta, case No.2:05CR01060, unpublished (C.D. Cal. 2006).

C. Viruses, worms, trojans, timebombs

D. IP crimes

  • United States v. Lambert, 446 F. Supp. 890 (D. Conn. 1978).
  • United States v. LaMacchia, 871 F. Supp. 535 (D. Mass. 1994).
  • Arista Records, Inc. v. MP3Board, Inc., 2003 U.S. Dist. LEXIS 11392, Copy. L. Rep. (CCH) P28,658 (S.D.N.Y. 2003).
  • United States v. Hsu, 40 F. Supp. 2d 623 (D. Pa. 1999).

E. Digital espionage, carding, e-banking robbery, online wars

F. Pornography

G. Other

  • People v. Fernino, 2008 NY Slip Op 28044, 1 (N.Y. Misc. 2008).

VIII. E-government (e-administration, e-voting, technological neutrality of the state, open standards) issues

  • Online Policy Group v. Diebold, Inc., 337 F. Supp. 2d 1195 (D. Cal. 2004).

IX. Litigation (e-evidences etc.)

  • Bakhtiari v. Lutz, 507 F.3d 1132 (8th Cir. 2007).

Personal interests, case I ACa 564/04

January 25th, 2006, Tomasz Rychlicki

On 2 September 2002, the Polish company Secunda, a publisher of a portal website, posted a link to website on its webpage under the “Entertainment and sex” category in the “Winning websites” section under the name “Young women are the best”. The link to website was described as follows “10 hardcore pictures galleries. One could deal with this issue far better”. The gallery no 3 featured pictures of a woman in a swimsuit, that were made during a photographic session for candidates to advertising campaign. The plaintiff who worked with models agency sued Secunda. She argued that she has never agreed to a distribution of her image, nor received any remuneration for participation in a photo session. The plaintiff noted that a link to the website combined with the recommendation of this site are a form of distribution of the image of a person depicted in photos available on Secunda’s website. The defendant took no steps to ascertain whether the plaintiff consented to distribute these photographs and it did not take any action to obtain such consent, the defendant’s conduct, involving the unauthorized dissemination of the image of the plaintiff on the porno website, violates her image rights and degrade her in the public due to the inclusion of her image in pornographic pictures. Secunda claimed that it has no standing in this case because the infringer was a person who created a gallery available under link.

The District Court in Kraków in its judgment of 26 February 2004 case file I C 2060/03 ruled that Secunda infringed on plaintiff’s personal rights by publishing questioned images. The court said that Secunda was responsible because it had the opportunity to check the contents of the “Winning websites” section, and images contained therein. The editor was responsible for the compilation of recommendations and a link to website, and in this case it was Secunda. Both parties appealed.

The Appellate Court in Kraków in a judgment of 20 July 2004 case file I ACa 564/04 TPP 2004/3-4/155 rejected Secunda’s appeal and changed the lower Court’s decision on damages awarded.