A 'catch' for the hater

By Katarzyna Kosińska-Polak, Legal Advisor, Partner at MKZ Partnerzy

Courts often tend to find it problematic to differentiate between lawfully prohibited hate speech and a simple unfavorable opinion. It could be that the same comment is judged twofold: either as a breach of the right to freedom of expression, or as an acceptable criticism.

Polish jurisprudence highlights that the language used on the internet not only deviates from the norms established in other means of communication, but it also tends to be more blunt. In Art. 41 of the 1984 Polish Law on the Press, we can find a clause emphasizing that “publishing of just and negative reviews of either scientific or artistic works, or other creative, professional or public activity that are consistent with the principle of social-coexistence remains protected by law.” This clause also applies to situations involving satirical or caricaturist work.

With a deep belief that their behavior will not be punished, many online users continue to insult others. They see “vitriolic internet hatred” as a separate phenomenon that does not correspond with “online hatred.”

From a legal perspective, however, online slander falls under the scope of legal liability, regardless of whether it happens on the street, or in a shop. The difference lies in the negative consequences: as spoken words will soon be forgotten, comments written online can last for years, thereby causing irreversible damage.

Typical haters use aliases to hide behind a cloak of anonymity. And that is another error – the Supreme Administrative Court (NSA) put an end to this practice in 2013 by revoking the judgment of the regional administrative court. The reasoning of the Court’s judgment held that “in matters regarding the protection of a company’s or an individual’s reputation, not the Personal Data Protection Act, but the Act on Rendering Electronic Services applies.”

That reasoning was revoked by the NSA. The Court’s judgment indicates a change to past practices by granting access to personal data of natural or legal persons, as provided by the Personal Data Protection Act (e.g. in cases of slander).

If the website administrator rejects a request for disclosure, an application can be made to the Inspector General for Personal Data Protection (GIODO; Generalny Inspektor Ochrony Danych Osobowych) who, in line with administrative procedures, will provide the user’s data (IP address, e-mail address, login data). The data can be disclosed to the police, prosecutor or the person concerned. Subsequently, the injured party can now request the information from the website administrator, stating that there was an interference with his or her personal rights.

Bearing in mind the negative consequences of online hate speech, we should focus on its intricate nature. Except for the damage to our image (loss of reputation), there are also psychological consequences that might lead to depression, or even suicide. The difference pertains to the business sector. Negative opinions about products and services affect revenue. In a situation in which insults have been carefully planned by competitors, the provisions of the Unfair Competition Act apply.

Therefore, in each case, the victim has the ability to undertake necessary legal steps against the hater. The legal means that help defend one’s good name are based on the substantive provisions of the Polish Civil Code (Art. 23 and 24) and include: delivery of an official apology, removal of the effects thereof, or financial compensation. The first step is to ask the website administrator to remove the inappropriate content. In my experience, it is only a matter of time for the comments to be removed, as long as the request is supported by the appropriate legal arguments.

The injured party can also pursue legal recourse under the Polish Penal Code (PPC). If he has been a victim of a defamatory statement (Art. 212, PPC) or was insulted (Art. 216, PPC), the offender is punishable by a fine, restriction of liberty or imprisonment of up to a year. Offending religious feelings can also come into play (Art. 196, PPC).

Haters often believe that the injured person or company will refrain from undertaking any legal action against the misconduct. Here too, they are wrong, with more individuals determined to enter into a legal dispute.

In the private sector, the consequences involve revenue losses. Individuals, however, often argue that high financial compensation is not the main issue for them. They simply believe that haters must be punished. In short, it is a “matter of principle” that is worth pursuing. U