Posted on Categories judicature, litigation

Choice of court for the victim of online publication?

On 15 December 2017, judges of the Civil Chamber of the Supreme Court of Poland ruled on the crucial issue of the choice of court for a plaintiff alleging injury from a publication posted online.

Under Art. 35 of the Civil Procedure Code, a tort claim can be filed with the court in whose jurisdiction the event causing the damage occurred. This provision does not make it clear however whether for this purpose the place where the event causing the damage occurred can also be the area of the court’s jurisdiction where the plaintiff could have seen the online publication.

This query was submitted to the Supreme Court (Case III CZP 82/17) by an appeal court. Contemporaneously, another court submitted a similar query, regarding whether the place of an event causing damage is solely the place where the defendant in a defamation case acted, or can also be the place where non-material damage resulting from that conduct occurred (Case III CZP 91/17).

The Supreme Court found in favour of the plaintiffs seeking a broader interpretation of Art. 35 of the Civil Procedure Code. The judges concluded that a person seeking protection of personality rights or a business protecting its reputation may file suit under this article with the court in whose jurisdiction the action occurred that caused a risk to, or breach of, personality rights or the interests of the undertaking.

In both of the cases reviewed by the Supreme Court, the issue was that the content injuring the plaintiffs was published online, and thus it could not be determined definitively where the event that caused the damage occurred. On the one hand, that place could be the address where the content in question was posted on the internet, while on the other it could be the place where the content posted on a website could be seen. In the latter situation, damage would occur when the publication was read.

If the argument is accepted that the place where the damage occurred was only the place where the content was posted online, the consequences would be highly onerous for potential plaintiffs. Firstly, as the aggrieved parties, they are required to show that the publication inflicted damage on them. Secondly, they could often have problems determining where precisely the event occurred. Thirdly, if the person responsible for the publication posted content online outside of Poland, conducting proceedings would be more complicated. Taking into account the availability of evidence, the places of residence of witnesses, and places where damage occurred, the solution proposed by the Supreme Court seems reasonable. The court found that in this case a literal interpretation of Art. 35 of the Civil Procedure Code would be contrary to the function and objective of that article.

The judges stated that the reason for their decision was also that a person who publishes harmful content online must be aware that they could also be held accountable at the place where the effects of the person’s actions occur. It is unacceptable for people breaching the law online to have a greater feeling of impunity and only benefit from the convenience provided by the internet.

Aleksandra Lisicka