Case law Developments in PIL

Lawsuit Against Facebook for Violation of Personality Rights – News From Poland

Społeczna Inicjatywa Narkopolityki – SIN (Civil Society Drug Policy Initiative) is a A Polish association that conducts educational activities on the consequences of drugs use. In 2018 SIN’s Facebook and Instagram accounts were removed as “in violation of Community Standards”.

In May 2019 SIN filed a lawsuit against Facebook (namely, Facebook Ireland Limited seated in Ireland, which later changed its name to Metaplatforms Ireland Limited) demanding inter alia restoration of the removed accounts, as well as granting interim measures in that respect.

The case, which is still pending before Polish courts, has interesting private international law aspects.

Jurisdiction

In its decision of June 2019 Sąd Okręgowy w Warszawie (Regional Court in Warsaw) granted interim measures by ordering Facebook to restore and stop blocking / removing SIN’ accounts while the case is pending. Facebook appealed the decision. It was upheld by the decision of May 2021.

In the decision on interim measures of June 2019, the Court discussed the existence of its jurisdiction as to the merits of the case. The Court referred to Article 7(2) of the Brussels I bis Regulation and the jurisprudence of the Court of Justice of the EU in eDate case (C-509/09) and explained that

Although the present case does not concern infringement of personal rights by posting infringing content online, but – infringement of personal rights by removing content from the internet, the existance of the jurisdiction of the Polish court based on Article 7(2) is justified by the following reasons.

Both parties have their seats in EU Member States, the claimant conducts its business activity in Poland, thus the center of its interests lies within the jurisdiction of this Court. The widespread availability of content posted online means that this content is also available at the claimant’s center of interest. Moreover, the claimant directs the content to persons residing in Poland, as the content is posted mainly in the Polish language. Therefore, the removal of content uploaded by the claimant with the suggestion that the content is harmful and poses a threat to the safety of users means that the effects of the infringement of the freedom of expression in the form of blocking sites and groups also occurred at the claimant’s place of business and the effects of the infringement of the reputation of the uploader also occurred at the claimant’s place of business.

The above led the Court to the conclusion that it does have jurisdiction to hear SIN’s claim.

In its appeal agains this decision, Facebook raised lack of jurisdiction of Polish courts pursuant to Article 25 of the Brussels I bis Regulation pointing to the existence of a prorogation clause, which covers also claims based on violation of personality rights. In its response to the appeal, SIN submitted that the jurisdiction to grant interim measures exists on the basis of Article 35 of the Brussels I bis Regulation, and therefore, Facebook might not ask for lifting of the interim measures submitting lack of jurisdiction.

In the decision of May 2021 in which the first decision on interim measures was upheld, the Court analysed the existence of jurisdiction as to the merits of the case and as to interim measures. Interestingly, it first cited the provisions on jurisdiction contained in domestic law (namely, Article 11037(2) of the Code of Civil Procedure), to later conclude that  Article 7(2) of the Brussels I bis Regulation “is similar to 11037(2) of the Code of Civil Procedure”. The Court then referred to the jurisprudence of the Court of Justice of the EU, in particular in e-Date case and stated that

(…) Undoubtedly, the infringement of personal rights in the form described by the claimant took place in Poland (…)

Indeed, infringement of personal rights on the Internet is a so-called  multi-state tort, the effects of which arise not only at the place where the server containing the data is located or where the company infringing personal rights is established, but also at the center of the life interests of the recipient of such infringement and of the more broadly, the public who may come into contact with such a violation of personal rights by using the portal in question.

There is no doubt that the public debate on Polish public affairs that takes place on the Internet, despite its virtual character, takes place on the territory of Poland. Therefore, it should be considered that the consequences of infringement of personal rights also take place in Poland.

When it comes to jurisdiction to grant interim measures the Court confirmed that it does exist, referring only to domestic law (Article 1110³(2) of the Code of Civil Procedure), instead of Brussels I bis Regulation.   

Applicable Law

In Poland, Article 16(1) of the 2011 Act on Private International Law, provides that the personal rights of a natural person are governed by the law of his / her nationality. Pursuant to Article 16(2) of this Act, natural person whose personal rights were threatened or infringed may claim protection under the law of the state where the event giving rise to a threat or infringement has occurred, or under the law of the state where the consequences of the infringement occurred. In accordance with Article 20, the above mutatis mutandis applies to the protection of the personal rights of legal persons.

Having cited these provisions, the Court very briefly concluded in the decision of June 2019 that

Since the claimant links the effects of the infringement of personal rights to the territory of Poland, the applicable law is Polish law.

Please note that English translation of Polish 2011 Act on PIL is available online in volume XIII of the Yearbook of Private International Law at p. 641.

Service of Documents

Facebook refused to accept SIN’s claim which was written in Polish language. Hence, the Court decided on translation of court documents into English and summoned SIN to pay an advanced payment for this translation.

Referring to Service Regulation SIN appealed this decision, arguing that Facebook directs its services to Polish users. There are approximately 16 000 000 Polish users of Facebook. All documents regulating the use of the platform are available in Polish language. After their acceptance they constitute contracts which are concluded by Facebook with its customers. This means that Facebook is party to millions of contracts written in Polish language. As a result, one might not argue that Facebook does not understand this language.

Irrespective of SIN’s arguments an appeal to the decision on advanced payment for translation was dismissed by a decision of March 2022. Hence, SIN had to pay for the translation.

News on SIN’s case are published in Polish and English and may be followed here.

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