Poland

Author: | Published: 2 Feb 2000
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By Tomasz Zalewski of Wierzbowski & Szubiekska, warsaw

This overview does not intend to exhaust the topic of legal aspects of doing e-business in Poland. To outline problems and doubts which could arise, we present the basic legal issues which may influence e-business in Poland and we indicate where, in our opinion, the present Polish legislation does not allow for unconstrained development of e-business.

We believe that the scope of e-business should not be limited to so called e-commerce — that is the marketing, selling and purchasing of products and services via internet. The popular definitions of e-business describe it as a new method of doing business by electronic means, in particular, internet technologies. This electronic revolution results in faster and cheaper marketing of goods and services, eliminating geographic barriers, facilitating the making of new offers for existing and new customers and creating new products and services. However, we stress that e-business is often treated also as a new business philosophy redefining business models, changing corporate cultures, improving relationships with customers and suppliers, and altering the trends in the entire industries.

Thus, the description of legal implications of e-business is not simple. Consequently, we are unable to address in this short overview all legal aspects, which may apply to the e-business strategy developed by a specific investor.

GENERAL ISSUES

Encryption. Encryption is often seen as the key issue for e-business as it removes the customer's doubts about the secrecy of their data and provides practical solutions to the electronic signature problem.

Generally, Poland does not control the use of cryptography technology in internet. Polish law only restricts the foreign trade of some cryptographic technologies and products. Foreign trade means import, export and transfer through the territory of Poland, regardless of the manner of transportation. As an example, transfer via internet of a cryptographic software from a server located abroad may result the foreign trade being subject to such control (but only if that particular technology is listed in a special list of restricted technologies). In other cases, the application and use of cryptography in internet is not subject to statutory restrictions. Exceptions relate to certain applications of such technologies or to cases where the user of such a technology has a special status (mainly governmental bodies).

Protection of personal data. Internet allows for an easy collection of data regarding customers or persons actively using internet. Creation of a database with information about the customers is essential in various e-business applications.

The Polish Act on Personal Data Protection of August 29 1997 provides many restrictions regarding the right to process personal data, in particular, if it occurs without the consent of the persons concerned. In business practice, it is allowed only when it is necessary to fulfil the justified interest of an administrator who processes the data for business, economic or statutory purposes, provided that such processing does not infringe the rights and the freedom of a particular person. Transferring such processed data to other persons is permitted in exceptional cases only. Breaching these rules may lead to criminal liability and administrative measures. The protection of personal interest of both natural and legal persons (like name, image, secrecy of correspondence) is also provided for by Articles 23 and 24 of the Polish Civil Code.

CONTRACTUAL ISSUES

Declaration of will on the internet. The main problem of contracting via internet is the electronic creation of declarations of will. The properly executed declaration of will is crucial for each valid internet contract, as generally a contract may be concluded if both parties make unanimous declarations of will.

The Polish Civil Code provides that the will (intent) may be expressed by any behaviour of a person, sufficiently manifesting such will. We believe that even in the new circumstances and in the internet environment, the above general rules of civil law should apply. The will may then be expressed also by clicking an appropriate button, sending an e-mail with an affirmative reply in the subject line, etc. The intention of sender could be then interpreted clearly.

Digital signatures. The biggest legal problem of contracting through internet is connected with confirmation of the authenticity of a submitted declaration of will. It cannot be satisfactorily resolved by application of the existing legal rules. On the one hand, the technical solutions allowing for such identification are necessary, eg, the use of encryption technologies; on the other hand the law must recognize validity and effectiveness of such encrypted declarations. The legal significance of such a digital signature becomes crucial in enforcing the contractual relationship, since Polish law requires, for many transactions, a written form and only in banking dealings is an electronic signature legally accepted as equal to the written form.

Written form. According to the Polish Civil Code, any legal act of a value exceeding PLN 2,000 must be confirmed in writing. The Civil Code provides that the written form requirement is met if there is a personal signature on the document containing the declaration of will. The consequence of non-observance of this formality is that the court could refuse to accept the witnesses' and the parties' affirmation. This would make the plaintiff's situation difficult.

There is, however, a possibility that the courts may accept the position that, if the identity of a person who submitted an electronic declaration of will can be undoubtedly established, then such a declaration satisfies the requirement of the written form. Even if the declaration does not meet the requirements of the written form, that alone does not invalidate the whole contract (in most cases, including a sale or lease), but only causes evidential difficulties in court proceedings. Therefore, though the introduction of new legislation would clarify the situation, the use of technical means enabling the identification of the parties to an electronic contract should be encouraged in order to decrease the risk.

E-banking. It is worth mentioning the new regulations of the Polish Banking Law of 29 August 1997. According to Article 7 of this Law, the declarations of will submitted in connection with banking transactions may be expressed by an electronic carrier of information. Accordingly, if the law generally requires a written form for the banking transaction, such a transaction made with the use of an electronic carrier fulfils the requirements for a written form. This is fundamental for the development of new banking tools such as the electronic wallet or internet banking.

Consumer protection. The draft new law regarding contracts concluded outside the premises of an enterprise is pending in the Polish Parliament. This law generally protects interests of consumers purchasing goods by mail order, but it would apply also to contracts concluded via e-mail. The proposed law protects consumers by obliging the seller to deliver comprehensive information to the customer about the offered goods, to perform the delivery within maximum 30 days, to give the customer a right to withdraw from the contract without cause within 7 days, etc.

We emphasise that in cases of selling customer goods the Decree of the Council of Ministers (dated 30 May 1995) provides the detailed conditions of such contracts, which may apply to electronic contracts as well.

Standard terms of contracts. Almost all internet contracts are concluded on the basis of the standard term contracts. This applies, in particular, to contracts with consumers. The Polish Civil Code contains some limitations on the use of standard terms. They cannot reserve unjustified profits for one party as the other party may ask the court to recognize such terms as ineffective. This, in practice, would invalidate the agreement. The standard terms of the contracts are binding for the second party only if they were validly incorporated into the agreement, ie, the second party could acquaint itself with them and expressed its consent for their incorporation. For this reason, it is particularly important to draft and present the standard terms in a way easily accessible to customers, eg, cascades of many links directing to such terms should be avoided.

COPYRIGHT LAW

The Polish Copyright Law is generally modern (in force since 1994) and reflects the provisions of most major international copyright conventions. It regulates the new problems of software copyrights, the neighbouring rights and databases. The generality of the definition of the content of copyrights and the fact that exploitation of works in computer networks is expressly indicated in the copyright law means that basically all forms of exploitation of works in computer networks are subject to copyright protection. Development of the internet showed many doubtful areas but most of them may be solved without amending the present law.

WEB ADVERTISING

Web advertising is subject to similar regulations and limitations as other forms of advertising. When advertising takes place on a Web page which may be treated as the press (both e-versions of press printed elsewhere and exclusively e-press), the advertising of some products is more limited, eg, cigarettes for young people, alcohol or medicines. One should also remember that this advertising activity on the internet may have worldwide consequences and is – by definition – over frontiers. Therefore, it should be considered that the local laws of many countries may also apply to the e-business activities what can lead to difficulties in enforceability.

CHOICE OF LAW

According to Polish International Private Law, the parties to an international contract may generally choose the law, which should govern their contractual relationship. If they do not indicate such a law, the applicable law, according to criteria from the Law is based on the type of the contract and the countries where the parties are domiciled.

ENFORCEMENT

In litigation, documents play an important role in the evidence proceedings. Traditionally, the definition of a document is limited to written documents. In practice, the parties often present printouts of documents, which are the reproduction of electronic documents. Such printouts may be treated as documents but there are still doubts regarding the signature. Therefore, without changes in legislation one should be careful in determining the legal nature of electronic documents and their role in litigation.

LIABILITY

On the basis of Polish law, the responsibility of three groups of persons should be considered: access providers, content providers and service providers. The scope of their liability may be different in various areas of law. Below is a short outline of their liability in copyright. The access provider may be liable as an indirect violator who aided the direct violator to infringe the copyrights of an authorized person. Such aiding may be defined as providing the violator with the equipment or products necessary to commit the violation. The content provider may be liable for direct copyright infringement in the form of "entering the work into the computer memory" without the author's authorization. The service providers appear in various roles. If they provide only access to a system, which automatically copies materials entered by third parties (subscribers), the liability may be limited to events of acting in bad faith. However, when the entry of someone else's materials (works) into the network is conscious and made in order to attract subscribers, the liability of the provider would be based on general rules.

CRIMINAL LAW

The internet has created a new means of communication, thus making it easier to commit some criminal offences and crimes easy. This is clearly demonstrated in cases of pornography or copyright infringement. The internet also creates also new types of offences such as hacking. The new Polish Penal Code (of June 6 1997) expressly regulates many computer offences such as hacking or computer fraud. It is worth mentioning that the new code defines the term document as any material or computer data, which may be of legal significance. This definition is ahead of the present regulation of civil law and allows for efficient enforcement of the criminal liability for computer crimes.

CONCLUSION

We tried to present those areas of law which, according to our knowledge, may be the most relevant for e-business investors in Poland. Nevertheless, as mentioned in the introduction, we cannot foresee all possible applications of e-business solutions and therefore we suggest performing an analysis on a case-by-case basis before starting a particular e-business project.

Contact Details:

Wierzbowski & Szubielska

ul. Nowogrodzka 68

02 014 Warsaw

Poland

Tel: +48 (22) 523 4111

Fax: +48 (22) 523 4755