CYBERLAW BY JUDYTA, No. 5, 20/07/2018
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CYBERLAW BY JUDYTA, No. 3, 18/05/2018
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Cyberlaw by Judyta, No. 2, 4/05/2018
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CYBERLAW BY JUDYTA No. 1, 16/04/2018
DEFAMATION IN THE INTERNET: POLISH LAW
It seems that an increasingly common problem for Internet users is dealing with defamatory behavior (online hate). The most common questions are:
– How can you defend against a cybercriminal?
– Where lies the limit when it comes to expressing critical opinions?
– How can a victim claim his/her rights?
Internet users must be aware of the responsibility they hold for their words, whether spoken or written, just as they are in real life. Internet users are not to go unpunished.
The rule governing defamation was formulated in Article 212 of the Polish Criminal Code (k.k).
Article 212
§ 1. Whoever slanders another person, group of persons, institution, legal person or organizational unit which does not have legal personality, of such proceedings or qualities which may debase it to the public opinion or expose it to the loss of trust required for a given position, profession or activity, shall be subject to a fine or restriction of liberty.
§2. If the perpetrator commits the act specified in § 1 by means of mass communication, they shall be subject to a fine, restriction of liberty or deprivation of liberty for up to one year.
§ 3. In the event of conviction for the offense referred to in § 1 or 2, the court may order the offender to compensate for the victim, the Polish Red Cross or any other social purpose indicated by the victim.
§ 4. The prosecution of the offense referred to in § 1 or 2 shall take place on a private charge.
The crime of defamation is an offense intended to protect the honor that every human being is entitled to. A contrario of the protection against defamation there may be the freedom of speech, the right to criticize or the right to verify competence and ability. One can slander through accusations or allegations. Information communicated in the form of libel will usually be untrue, although sometimes spreading of true information may also be punishable (Article 213 of the Liability Exclusion Act). Offenses can only be committed intentionally.
POSSIBLE WAYS OF DEFAMATION:
– orally
– in writing: letter, press article, excerpt from a book or literary work, caricature, picture, graffiti, or use of a victim’s photo (rework)
It is subject to dispute whether this can include a gesture or another non-articulated form. The statement may be hypothetical, questionable or in the form of suppositions.
DOCTRINE
The effect of public humiliation or the loss of trust does not need to occur. To commit an offense under Art. 212 c. it is only necessary for the information included in the slander to be objectively sufficient to produce the indicated effect and it does not matter whether it has been deemed genuine (9/10/2001, IV KKN 78/97). It must be possible to establish whether a given statement is false or true.
Another condition is that the perpetrator must communicate this information to at least one person or in the presence of at least one person. The perpetrator and the victim do not need to know each other.
ELIGIBLE TYPE OF DEFAMATION – WITH MEANS OF COMMUNICATION
The eligible type of this crime is defamation with the use of mass media. According to the provisions of the Polish Supreme Court of 7.05.2008, III KK 234/07, such media include not only printed press, radio, and television transmission but also posters, films, and Internet transmission. Mass availability does not pertain to the given medium, but to the availability of the information.
In such a case, the court may impose the penalty of restriction of liberty or imprisonment for up to one year.
In addition, in the aforementioned provision of the Supreme Administrative Court, it is pointed out that a periodic Internet message which fulfills the requirements of the press law, undoubtedly is a form of press.
CRIMINAL AND CIVIL LIABILITY
One may take into consideration the arrest of the perpetrator to both criminal and civil liability. The responsibility for an abusive entry is to be borne by the author, and the moment of making such an entry is the moment of committing the crime.
WHAT POSSIBILITIES ARE THERE FOR VICTIMS TO ESTABLISH THE IDENTITY OF AN ONLINE DEFAMATOR AND TO SEEK PROTECTION OF THEIR RIGHTS?
As a victim of defamation, it is important for you to take concrete actions to further protect your rights. These include: taking a photo or screenshot of the comment/entry, recording the IP address that sometimes appears next to the author of a post, and requesting deletion.
The victim themselves must file an indictment, confining to the identification of the accused, the crime and the evidence on which the accusation is based (Article 487 of the Criminal Code). In a private indictment, the defendant’s name must be indicated. It is not enough to give the perpetrator’s nick.
– Pursuant to Article. 29 of the 1997 Personal Data Protection Act, data may be made available for purposes other than inclusion, to other persons and entities than those mentioned in paragraph 1, if they provide a credible justification of their need for such data, and their availability does not infringe the rights and freedoms of the data subjects. The legislator decided that the decision on the disclosure of data be dependent on one’s own discretion. In the case of refusal to disclose the data, the injured party may, therefore, ask the General Inspector for Personal Data Protection (GIODO) to order the data to be disclosed pursuant to art. 18 sec. 1 point 2 of the Act on the protection of personal data.
– prosecutor’s prosecution – pursuant to Art. 60 § 1 k.p.k., the prosecutor may initiate proceedings or proceed to already initiate proceedings if the public interest so requires. His decision is only subject to the superior prosecutor’s inspection (excluded court review).
– Pursuant to art. 488 k.p.k., filing an oral or written complaint to the Police, who then take appropriate actions, for example:
* securing evidence by examining the website and preparing a protocol
* establishing the IP address by exempting the administrator from telecommunication secrecy and obtaining the IP number
– After obtaining the perpetrator’s IP number – establishing the data of competent operators, and after obtaining the data of service providers – requesting for them to provide the service providers data (this also requires an exemption from telecommunication secrecy by the prosecutor or the court by way of order).
– Passing data about the perpetrator by the police to the court.
The most common causes of slander (online hate) are jealousy, emotional immaturity, and self-esteem issues. Children and adolescents are especially exposed to online hate, and they are often unable to cope with such accusations, which may sometimes lead to serious disorders, depression or even suicide.
The crime of defamation expires one year after the victim has learned of the perpetrator of the offense, but not later than three years after the offense (Article 101 § 2 of the Code).
EXAMPLES:
1. In the judgment of September 30, 2016, I CSK 598/15, concerning the case brought by Roman Giertych against Ringier Axel Springer Polska, the Supreme Court decided on the plaintiff’s win and that the defendant company did not prove that they had not known about the entry „The Court has mistakenly assumed that it is the plaintiff’s responsibility to determine whether the defendant knew of the unlawful posts; This obligation is on the defendant.” Read more: www.rp.pl/Dobra-osobiste/309309895-SN-o-Sporze-Giertych—Fact-your-documents-of-the-portal-of-the-faced.html#ap-2- About the principle of notice- and –takedown – my own article „Procedura Notice and Takedown a bezprawne udostępnianie plików multimedialnych. Odpowiedzialność hostingodawcy”, Krakow 2016.
2. Andrzej Golota’s case against Jarosław Sokołowski. Mass for slander. In his book, the famous crown witness included a statement that Andrzej Gołota deliberately lost the fight with Michael Grant in 1999. The judgment of the District Court in Warsaw ordered an apology. Read more: www.warszawa.wyborcza.pl/warszawa/1,34862,19945547,masa-musi-przeprosic-andrzeja-golote-wyrok-sadu.html
3. The case involving a local government member acquitted by the Court, who filed a claim for redress and apology against the CBA (the Anticorruption Office). The plaintiff won the case and the CBA apologized to him on their website. Read more: www.samorzad.lex.pl/load/-/artykul/cba-przeprosil-samorzadowca-zodajrzenia
Last update: 01/09/2017
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DECLARATION OF THE INDEPENDENCE OF CYBERSPACE, 1996
Below is the text of the Declaration of Independence of Cyberspace prepared by the American poet John Perry Barlow. Content has lost some of its momenta, but most ideas are still relevant to Internet users. Sam Barlow states that the declaration should be revisited. The Declaration includes a call to maintain the independence of the Internet and opposes any form of censorship.
Barlow’s reading of the Declaration: www.youtube.com/watch?v=3WS9DhSIWR0
A DECLARATION OF THE INDEPENDENCE OF CYBERSPACE
by John Perry Barlow
Governments of the Industrial World, you weary giants of flesh and steel, I come from Cyberspace, the new home of Mind. On behalf of the future, I ask you of the past to leave us alone. You are not welcome among us. You have no sovereignty where we gather.
We have no elected government, nor are we likely to have one, so I address you with no greater authority than that with which liberty itself always speaks. I declare the global social space we are building to be naturally independent of the tyrannies you seek to impose on us. You have no moral right to rule us nor do you possess any methods of enforcement we have true reason to fear.
Governments derive their just powers from the consent of the governed. You have neither solicited nor received ours. We did not invite you. You do not know us, nor do you know our world. Cyberspace does not lie within your borders. Do not think that you can build it, as though it were a public construction project. You cannot. It is an act of nature and it grows itself through our collective actions.
You have not engaged in our great and gathering conversation, nor did you create the wealth of our marketplaces. You do not know our culture, our ethics, or the unwritten codes that already provide our society with more order than could be obtained by any of your impositions.
You claim there are problems among us that you need to solve. You use this claim as an excuse to invade our precincts. Many of these problems don’t exist. Where there are real conflicts, where there are wrongs, we will identify them and address them by our means. We are forming our own Social Contract. This governance will arise according to the conditions of our world, not yours. Our world is different.
Cyberspace consists of transactions, relationships, and thought itself, arrayed like a standing wave in the web of our communications. Ours is a world that is both everywhere and nowhere, but it is not where bodies live.
We are creating a world that all may enter without privilege or prejudice accorded by race, economic power, military force, or station of birth.
We are creating a world where anyone, anywhere may express his or her beliefs, no matter how singular, without fear of being coerced into silence or conformity.
Your legal concepts of property, expression, identity, movement, and context do not apply to us. They are all based on matter, and there is no matter here.
Our identities have no bodies, so, unlike you, we cannot obtain order by physical coercion. We believe that from ethics, enlightened self-interest, and the commonweal, our governance will emerge. Our identities may be distributed across many of your jurisdictions. The only law that all our constituent cultures would generally recognize is the Golden Rule. We hope we will be able to build our particular solutions on that basis. But we cannot accept the solutions you are attempting to impose.
In the United States, you have today created a law, the Telecommunications Reform Act, which repudiates your own Constitution and insults the dreams of Jefferson, Washington, Mill, Madison, DeToqueville, and Brandeis. These dreams must now be born anew in us.
You are terrified of your own children since they are natives in a world where you will always be immigrants. Because you fear them, you entrust your bureaucracies with the parental responsibilities you are too cowardly to confront yourselves. In our world, all the sentiments and expressions of humanity, from the debasing to the angelic, are parts of a seamless whole, the global conversation of bits. We cannot separate the air that chokes from the air upon which wings beat.
In China, Germany, France, Russia, Singapore, Italy and the United States, you are trying to ward off the virus of liberty by erecting guard posts at the frontiers of Cyberspace. These may keep out the contagion for a small time, but they will not work in a world that will soon be blanketed in bit-bearing media.
Your increasingly obsolete information industries would perpetuate themselves by proposing laws, in America and elsewhere, that claim to own speech itself throughout the world. These laws would declare ideas to be another industrial product, no nobler than pig iron. In our world, whatever the human mind may create can be reproduced and distributed infinitely at no cost. The global conveyance of thought no longer requires your factories to accomplish.
These increasingly hostile and colonial measures place us in the same position as those previous lovers of freedom and self-determination who had to reject the authorities of distant, uninformed powers. We must declare our virtual selves immune to your sovereignty, even as we continue to consent to your rule over our bodies. We will spread ourselves across the Planet so that no one can arrest our thoughts.
We will create a civilization of the Mind in Cyberspace. May it be more humane and fair than the world your governments have made before.
Davos, Switzerland
February 8, 1996
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THE INDUSTRIAL REVOLUTION: DIGITAL REVOLUTION
During the World Economic Forum held in Davos in 2016, the Fourth Industrial Revolution was officially announced, which is also identified with the Digital Revolution.
Looking back we must go back to the seventeenth century (about 1789) when the First Digital Revolution began. It was characterized by the use of water and steam for production processes.
About 1870, the Second Industrial Revolution began, which was connected with the use of electricity in production processes.
After the WW2, technology and science have started to be closer than ever before.
During World Economic Forum in Davos, it was announced that the beginning of the Fourth Industrial Revolution, with the advent of 3D printing, Cloud computing, Big Data, quantum computers, DNA modifications, autonomous cars, drones, Internet Stuff (IoT) and more. More about it can be found here.
What characterizes the new technologies is the inability to predict the course of development, so it is only certain that the progress is inevitable, but in what direction it is going to be a riddle. As proof of this, the statement of Thomas Watson (founder of IBM) can be cited which was made in the 1940s, which claimed that the world would demand maybe for five computers.
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THE PROTOTYPE OF THE MODERN COMPUTER
Today, I present one of the prototypes of the computer. It is difficult to capture in the right frame the history of the invention and development of computers because without many other previous inventions it would not have been possible to develop computer technology.
The first similar machine can be based on the mechanism od Antykithira which was found in the 1900s in Greece. It is an example of ancient Greeks and it allows us to suppose that ancient societies were more advanced in technological knowledge than we had thought.
The next examples of such machine can be found in some projects of Leonardo da Vinci, Blaise Pascal, or Charles Babbage. , which was only discovered in the early nineteenth century in Greece, and is the idea of the ancient Greeks.
You can then point to the unfinished sketches of Leonardo da Vinci, Blaise Pascal’s ideas to Charles Babbage’s project. This last scientist turned out to be outstanding figures who devise things ahead of the times in which they lived. Babbage was not able to realize his ideas and only after his death was the construction of his calculating machine possible. The picture above presents a reconstruction of the Babbage machine, which is located in the Science Museum in London (photo from my private archive).
The difference engine is a mechanical calculating machine. It was designed by the mathematician and inventor Charles Babbage. His aim was to calculate and print mathematical tables that would be much more accurate than the hand-produced versions used by Victorian engineers, scientists, and navigators.
Babbage called his machine a ‘difference engine’ because it calculated the tables automatically using ‘the method of finite differences”. This mathematical method involves only addition and subtraction- avoids multiplication and division, which are more difficult to mechanize.
It was not completed during his lifetime.
You may found the interesting podcast on „The Economics” – Babbage series, every Tuesday.
More about the development of the computer invention soon.
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Dear Readers,
Welcome everyone who came to visit my site. I wish I had created this project a long time ago. Now it is time to do realize the plan.
This blog will be devoted to cyberlaw and all the issues that combine law with the new technologies. The main language of the blog is English with a Polish translation.
Topics will cover the following issues:
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Basic ICT knowledge: history, definitions, concepts, ideas, movements, and organization
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Intellectual Property Rights in Cyberspace: Digital Rights Management, Licenses
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Data protection in cyberspace: GDPR regulations, rights to be forgotten, rules notice and takedown
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Electronic Commerce: Single Digital Market (DSM), bitcoin, cryptocurrency, AML, CTF
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Cybercrime: internet fraud, identity theft, internet hefty, trolling
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Cybersecurity: cyberterrorism, cyberwar
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Informatics investigative: artificial intelligence & law, smart-city idea, smart contract, Web 2.0, ROSS
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New media and politics: democracy in cyberspace, online elections, and campaigns
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Psychology: Internet addiction, cyberbullying, e-learning, computer games
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Religion: online collaboration, evangelism in cyberspace, new religious movements
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Distributed Ledgers Technology, UNICITRAL Model Law on Electronic Transferable Records (MLETR), the idea of the Geneva Digital Convention Convention
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many other
The blog has both the scientific and the popular science character.
I hope the topics herein will be of interest to you.
Furthermore, I encourage you to explore legal and IT knowledge, as experts say – without the knowledge of new technologies and the ability to use them, you cannot succeed in any area of your life.
As Steve Jobs said – Information is power.
I invite you to follow up on the blog posts and construct valuable discussions. #StayTuned
Cyberlaw by Judyta 