WILMAP: Poland


LEGISLATION

 
[This Act implemented the EU Electronic Commerce Directive 2000/31/EC, introducing intermediary liability for unlawful content. Following the Directive it differentiates between mere conduit, catching and hosting, introducing no obligation to monitor or filter hosted or cached content as well as a basic notice-and-takedown procedure. The Act determines obligations of information service providers (ISPs), rules for insulating them from legal liability as well as rules for the protection of personal data treated by the intermediaries.
 
(1) Definitions. According to the Act, “providing services by electronic” means to render a service by transmitting and collecting data by means of teleinformation systems, at the individual request of a service recipient, without the parties being simultaneously present, while the data are transmitted through public networks. It distinguishes between a “service provider” and a “service recipient” whereby the former is understood as “any natural person, legal person or organizational unit without legal entity, who, while performing, even as side activities, commercial or professional activities provides services by electronic means”. The Act does not differentiate between access, service or content providers.  
 
(2) Media and Publishers Liability. Although the Act on rendering electronic services explicitly does not cover media (Article 3), Poland has been one of the first European states to recognize the editorial liability of information service providers (see case State Prosecutor v. Norbert Z. & Tomasz K below).  
 
(3) Spam. The Act covers also intermediary liability for spam introducing an opt-in model of spam protection. Article 9 requires commercial information to be clearly separated and marked in a manner that no doubt may arise that it is information of a commercial character. Article 10 prohibits sending unsolicited commercial information to a specified recipient - who never expressed any specific consent to receive it -  by electronic communication means.
 
(4) Liability ExemptionsChapter 3 of the Act is devoted to liability exemptions for ISPs. Article 12 introduces the mere conduit exemption stating that no responsibility for conveyed data shall be borne by the one who, while transmitting data, is not an initiator of the transmission, does not select the recipient of data, nor deletes or modifies the data subject to transmission. The exemption covers also automated and short-term indirect storing of such data, if this activity aims exclusively at proceeding with the transmission, and the data are not stored longer than it is ordinarily necessary for accomplishing the transmission. Similarly an exemption for caching services providers is provided in Article 13, which excludes any responsibility for stored data of entities transmitting data and providing for automated and short-term indirect storing of the data in order to make them quickly accessible on the request of another entity if they do not delete or modify the data, use information techniques recognized and usually applied for such activities and do not interfere with such techniques.
 
(5) Notice and Take Down. The notice and takedown procedure for cached illegal content is provided for in Article 13 par. 2 which exempts from liability for stored data the person, who, “immediately erases the data or makes the access to the stored data impossible as soon as he/she receives the message that the data have been erased from the initial source of transmission or the access to them has been made impossible, or a court or any other competent authority has ordered to erase the data or to make the access to them impossible.” Similar regulations relating to hosting providers can be found in Article 14 which exempts from liability for stored data a person, who, while making the resources of a teleinformation system available for the purpose of the data storage by a service recipient, is not aware of unlawful nature of the data or the activity related to them, and in case of “having been officially informed or having received a credible notice on the unlawful nature of the data or the activity related to them, makes the access to the data immediately impossible”. The terms “official information”, “credible notice” and “immediately” have not been defined in the Act nor in accompanying jurisprudence, resulting in much autonomy for service providers in making their decisions. This autonomy requires ISPs to make autonomous decisions on the credibility of the information received, legality of content and due time for such content to be disabled. There is no detailed notice-and-takedown procedure on formal and procedural conditions of filing a notice and its consequences in place, nor is there coherent self regulation in this area, with individual service providers making their decision individually. This situation causes an undesired chilling effect resulting in intermediary service providers disabling most content reported as potentially illegal in order to avoid any liability.
 
(6) Personal Data Protection. The Act introduces also detailed obligations of intermediary service providers regarding the rules of the Personal Data Protection Related to Providing Services by Electronic Means in Articles 16–24.] 
 
Press Law Act of January 26, 1984, O. J. 1984 No. 5, item 24 as amended 
 
[(1) Definitions. According to Article 7 para 2 pt 2 of the Press Law Act press is defined as “any and all existing and emerging in the course of technological advancement means of mass media, including broadcasting stations and television and radio broadcasting systems installed in facilities that distribute periodically publications via print, image, sound or any other broadcasting means” allowing to qualify all periodical online publications as press, resulting in editorial liability for service providers. The terms “publications” and “periodical” have no legal definitions therefore their  dictionary definitions apply, with “publications” referring to all content enabled publicly and “periodically” designating content updated within certain amounts of time. In the context of Article 7 para 2 pt 1, which explicitly qualifies press as printed publications published within less than one year, it may be argued that online publications updated at least once a year fall within that category. A “press release” is defined in Article 7 as any information, data or image that appears or is designated to appear in the press. 
 
(2) Media and Publishers Liability. Editorial liability is defined in Article 37 of the Press Law Act, which states that the “responsibility for harm caused by rights injured due to the publishing of a press release shall be set according to general rules, unless the Act states differently." Individual standards for editorial liability are defined in Article 38 of the Press Law Act, which provides for joint and several civil liability for damage caused by publishing a press release of “the author, editor or any other person, who had caused for that press material to be published”, including the publisher. The Press Law Act defines an editor as a journalist who decides or co-decides on the publication of a press release, enabling  for the qualification of content providers but also hosting providers as publishers.
 
(3) Registration. The Press Law Act creates two categories of press: daily newspapers and periodicals, where the former is defined as a general-information periodical in print or sound or sound and vision message published more frequently than once a week, and the latter as a periodical print published at least once a year but not more frequently than once a week, as well as messages broadcast by means of sound or sound and vision and any other means. Publishers who must register their publications or face fines. According to a widely criticized 2007 Supreme Court interpretation of the Press Law Act, concerning the electronic periodical "szyciepoprzemysku," any electronic press avaliable on-line must be registered. (see case State Prosecutor v. Norbert Z. & Tomasz K below).]

BILLS AND PENDING PROPOSALS

 
[The proposed amendments will introduce a comprehensive notice-and-takedown procedure for service providers. The amendments will include modernization and supplementing the provisions of the Act specifying the conditions to be met by electronic services providers to benefit from the exemption of liability for unlawful content posted by users. Provisions of the Act will supplement the existing notice and takedown procedure.]

DECISIONS

Superior Courts

Supreme Court, Civil Chamber, Dariusz B. v the City of E., IV CSK 665/10, July 8, 2011 (Restricted Access Version Available)
[hosting, anonymous content, open networks
 
[Providing open access to the Internet does not result in liability for content uploaded by anonymous users. The case was filed by Darius B. who anonymously posted a letter to the President of E. Among the comments to his text was one which included personal details and defaming statements about the plaintiff. The police identified the IP of the computer used for uploading the content. It was sent from an open network provided by the City of E. available to the employees of the city as well as neighboring households. It was not technically possible to identify the individual who posted the comment. The Supreme Court found that no liability for personal rights infringement rests upon the city which provided access to the open network nor was it under an obligation to provide technical tools for identifying individual users of such network.]
 
Supreme Court, Criminal Chamber, State Prosecutor v. Norbert Z. & Tomasz K. (the szyciepoprzemysku case), IV KK 174/07, July 26, 2007
[press law, editorial liability, registration
 
[The Polish Supreme Court found that the "deliberations that, according to the law, publishing press in electronic form does not require registration are wrong and contrary to entrenched doctrine." Therefore, “the person distributing without registration in the suitable district court, a journal or a periodical on the Internet, regardless whether such a distribution is accompanied by a transmission in print, next to its electronic form, or whether it exists solely in the electronic form on the Internet, suffices to recognize the crime described in art 45 of Press Law as having been committed.”]
 
Appelate Court, Civil, B.K.v. A.J., I ACa 1273/11, January 19, 2012 (Restricted Access Version Available
[liability for online comments, hosting, blogs
 
[Cracow Appellate Court, reversing the decision of the County Court of First Instance in Tarnów, found that a blogger is not obliged to monitor comments added by guests to the website he is running. The Court confirmed the lack of liability for hosted content, according to Article 14 of the Act on Providing Services by Electronic Means.]

OTHER RESOURCES

Joanna Kulesza, Polish Supreme Court: All Electronic Press Must be Registered, EDRi, January 12, 2011, https://edri.org/edrigramnumber9-1polish-electronic-press-registration-c...
Joanna Kulesza, Internet Service Providers Liability for Free Speech On-Line, in 5th Warsaw Seminar on Human Rights 240 – 247 (J. Czaputowicz, M. Szpunar (eds.), Warsaw 2012)
EDRi, No Intermediary Liability for Bloggers, EDRi, March 27, 2013, http://edri.org/edrigramnumber11-6no-intermediary-liability-bloggers

CONTRIBUTORS

Joanna Kulesza, Ph.D.
Assistant Professor, Faculty of Law and Administration, University of Lodz, Poland
Email address: joannakulesza at gmail.com

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