In recent years two new aspects of law appeared in common use in Poland. The first one is the protection of personal data and the second is the protection of personal rights. The protection of personal data is based on Personal Data Protection Act (Ustawa o ochronie danych osobowych) published in August 1997. The Act, as it entered into force, created a completely new part of the law. Many people perverted the course of law. Some even did not want to give their names in the offices, others wanted to sue the doctors when they called their names in hospital or postmen when they held the letters in such way that it was possible to see the names of sender and addressee.
The second rule of law which is described in the article is the protection of personal rights which is regulated in Civil Code (Kodeks Cywilny) which is in use since 1964. Although the protection of personal rights came into force more than 40 years ago the political and social changes which turned up in Poland after 1989 made this part of law common and well known.
Both aspects of law are very important due to the fact that they regulate the right of influence on our identity and prevent from breaking into our lives.
First of all, it is necessary to give the brief information about both the Act and the article 23 of Civil Code.
The Personal Data Protection Act gives everybody the right to have all the information about his person protected. All members of public life, government, local authorities, private companies and individuals are obligated to proceed accordingly with the Act. All the control over those matters is exercised by the General Inspector of Personal Data Protection – GIODO (Generalny Inspektor Ochrony Danych Osobowych).
If a person which the data concerns proves that the data is incomplete, is not current, unreal or collected in the way which is not allowed by law, the GIODO is allowed to protect the data by changing it or even deleting.
The article 49 of Personal Data Protection Act says that the person who transforms the data without allowance is liable to a fine and even to the prison penalty.
The article 23 of Civil Code says that such personal rights as health, freedom, name, image, secrecy of correspondence, immunity of residence and many other are under protection of civil law independently of protection given by other acts of law. Such short description created a serious need of interpretation and description of this law.
Both acts have some links and similarities. The breach of personal right is claimed in a civil complaint. The breach of Personal Data Protection Act may cause criminal liability but also may be claimed by the same rules as personal rights.
In this article I would like to discuss few cases which were conducted by the Supreme Court -SN (Sąd Najwyższy), the Supreme Administrative Court - NSA (Naczelny Sąd Administracyjny) and Appellate Courts - SA (Sąd Apelacyjny) in Poland and their verdicts which in my opinion are showing some interesting aspects of those rules.
A lawyer Thomas G. called his company “Thomas G. – lawyer’s office”. His name was used few times in public. He informed GIODO and than NSA about it. The NSA in a verdict from November 2002 decided that Thomas G. as a name of a private person and Thomas G. as a name of the company have different meanings and deserve different protection.
In the other case the same court in April 2003 decided that consent for personal data transfer has to be explicit and all the aspect need to be clear for data’s holder. There is no possibility to validate it by giving any explanations which had to be given before transfer after it.
The decision to make the personal data accessible belongs to GIODO not to the holder (not the owner) of them. The GIODO is allowed to order the holder of personal data database to cancel it if the database is being used not accordingly to the law.
Few years ago a bus controller asked the holder of student’s ticket for an ID to check if a traveler is a real student. The student refused to show his ID. He explained that the controller would be able to get much information about him. The case went over all degrees of jurisdiction and finally the NSA decided that the ticket controllers are allowed to check the IDs. Also banks are allowed to check IDs of their clients and to make the copies of them.
In spring 2003 just before the referendum on the accession of Poland to EU the Prime Minister’s Chancellery decided to send everyone a SMS which called to take part in the referendum. The NSA ruling however stated that the Prime Minister’s Chancellery did not use its phone numbers database in a proper way.
A company which bought the personal data database from another company should inform the people which are on the list about this fact and give them time to think over if they agree on having their data transferred.
The serious problem exists in the matter of debt transfers. The companies are allowed to sell the debts to the professional vindication companies. Those companies need the personal data, at least such as name and address of the debtor. There is a problem with transferring those data. As I have mentioned above such transfer needs the allowance of the debtor. To make such transfer possible there should be the allowance in a ground contract for dealing the personal data. To make it clear I will give here an example. A person “A” signs the contract with a telecom company. Among more important matters there is a clause in which he allows to transfer his data to the third party. If “A” doesn’t pay the bills the telecom company is allowed to sell his debt and the “A” can’t sue the telecom for sharing his personal data with other people.
The protection of personal rights is much more complicated. As an example it could be described the part of the article 23 of Civil Code which protects image. More information may be found in other acts. So we can find out that dissemination of a picture with the image needs the allowance of a person which is presented on this picture. There is no need of this allowance if the person received payment, is well known and the picture has been taken during some official events or the image of the person is only a part of the picture for example by landscapes or public events. It is really complicated. On one hand many aspects are explained but on the other we do not know what to do if the case is not described in legal acts.
There are many verdicts concerning the protection of personal right and giving the practical explanations of those aspects.
Two years ago a part of the Habsburg family which lives in Poland sued the Żywiec Brewery (the largest brewery in Poland) for using the coat of arms of the family as a part of the trade mark of brewery. The Supreme Court decided that the coat of arms deserves, similar to the name to be protected as personal right. The brewery had to change their trade mark.
Sometimes wrongly understood law may cause long trails. A flat was flooded. The owners demanded the money for renovation and for immunity of residence. The Appellate Court in Gdańsk explained that the immunity of residence protects the state of mind not the flat in physical way.
In 1995 one of the banks sent to its client a letter which contained information about his borrowings. The problem is that the letter had a form of a postcard and haven’t had envelope. The Appellate Court in Łódź decided that this activity breaches the secrecy of correspondence and accepted the demands of the plaintiff.
The personal right may also be used by companies. For example, the Polagra Company sued Polabra which had similar name and trade mark. The Appellate Court in Łódź decided in 1991 that Polabra is not allowed to use its name.
One cannot but mention the aspect of healthcare. Obviously, health is one of the personal rights. That is why the Supreme Court in 1983 ruled that except special circumstances doctors have no right to decide about the treatment without allowance of the patient.
Those few verdicts are showing some interesting details of protection of personal rights and personal data. The courts in Poland are passing the new sentences concerning those matters all the time. One act and one article of Civil Code could create a serious need of interpretation. Therefore, this is one of the main objectives of those verdicts. So, the role, those two short regulations play in Polish law is more than important.
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Tomasz Cyrol (born in 1983) student at Law Department of Jagiellonian University, Kraków, Poland. Runs own classes of civil law. Works in District Court in Kraków. Legal interests deal with civil law, company law and international affairs.
