Decision of Supreme Court, 17th April 2017, No IV KK 296/17

• 2017
• Poland

Topics

Legal bases

Courts

Laws

Relevant links

• http://www.sn.pl/sites/orzecznictwo/orzeczenia3/iv%20kk%20296-17.pdf

Facts

Mr. XX was charged based on the ground that that in the period from 11 May 2016 to 16 June 2016, through the website of the Duma i Nowoczesność Association (Proud and Modernity), he publicly disseminated stickers with the symbols Zakaz Pedałowania ("No faggot!") and other stickers of a homophobic character. These actions lead to conclusion of an offense under Article 141 of the Code of Misdemeanors. In the justification of the verdict, the District Court pointed out that there is no doubt that disseminated content is controversial and may be considered indecent, but the accused did not exhaust the offenses, because the distribution of stickers via the Internet is not acting in public space. The decision was not appealed by the parties and became final on May 16, 2017. The Ombudsman made a cassation against this decision accusing the gross and material violation of the substantive law, that is Article 141 of the Code of Misdemeanors, consisting in an erroneous acceptance that: "the Internet is not a public place" and, consequently, that the act accused of the defendant does not exhaust the offenses set out in this provision, which resulted in unlawful discontinuation of proceedings.

Legal grounds

Article 141 of the Polish Code of Misdemeanors

Findings

The Supreme Court allowed the cassation, stating that it shares the view that the Internet, although it is a virtual space, is a public space. To be held liable for an offense under art. 141 of the Code of Misdemeanors, it is necessary for the perpetrator to conduct the behavior specified in a public space, i.e. a space that is accessible to the public without any restrictions (park, station), and the one to which entry is possible after purchasing the appropriate entry card, ticket, or receiving an invitation (theater, concert, cinema). The scientific literature claims that behavior committed in a public place does not have to be taken publicly, although most often those are used interchangeably. Moreover, as some authors point out, to determine the conditions that must be met by a public place cannot only base on a formal perception of the usage of the space by an indefinite number of people. The Supreme Court emphasized that the association's website is a public website, not protected by a login or password. Every Internet user can visit the site. Therefore, it should be recognized that this site contains content that is located in a specific place (specific space) of the Internet and is available to an unlimited number of people at the same time. The other situation would be if this site was somehow secured with a login and a password that would only authorize a person or group of persons defined by the manager of such a virtual space to enter this page. Taking the abovementioned considerations into account, the Supreme Court overruled the decision appealed against by cassation and remitted the case to the District Court in Warsaw for re-examination.