Tag: human rights

IP and Privacy Rights as Fundamental Rights

March 25, 2021

Izabela Konopacka

The three sources of fundamental rights in the European Union undoubtedly reflect the complicated nature of the Union’s legal system.

Firstly, since the 1960s there has been continual development of a system of fundamental rights protection based on the general principles taken from Member State Constitutions. In turn, we can find them in the Court of Justice of the European Union’s jurisprudence.

Secondly, the Union has adopted its own Fundamental Rights in the form of the Charter of Fundamental Rights, which as a „written Bill of Rights” offers EU citizens a structured set of rights and makes it easier to use them.

Thirdly, there is a system of fundamental rights protection based on the European Convention on Human Rights. This directly affects the Member States and indirectly the EU system as a whole.  Following the Lisbon Treaty, the EU’s ability to become a party to the Convention was confirmed. However, as we all know, it has not been accepted yet, therefore, we cannot make a complaint to the Court of Human Rights against the EU because it is not a signatory to the Convention.

  1. Human Rights/Fundamental Rights involved

When it comes to how our fundamental rights are protected under the Charter and Convention we see the overlap between the two treaties. Furthermore, these have been interpreted and expanded by the Court of Human Rights. The EU, for example, has developed fundamental rights into legislation showing some of the differences between the institutions.

For example, Article 10 of the Convention protects our right to have our own opinions and to express them freely without government interference, Public protest, Freedom of the press and the same rights are mirrored under article 11 of the Charter

Article 8 of the Charter sets out the right to the protection of personal data, but the EU carries this further with, a whole range of specific protection such as the GDPR. The Convention expresses this differently, where the Court on Human Rights has emphasised that Article 8 includes private and family life, home, and correspondence including mail, telephone communications and e-mails in the workplace.

The ‘freedom to conduct a business’ in the charter on human rights, article 16  has been recognised by the CJEU to exercise an economic or commercial activity as we might expect.  However, because the Convention also applies to legal entities, their rights are protected too.

Having said this, there is an established concern about the standard of protection given at supranational level as well as the concern if and how the CJEU should allow Member States to apply their own, national, standard of rights protection as different from the EU standard when a situation falls within the scope of EU law remains controversial.

The above point was addressed in Melloni (C-399/11) where the CJEU gave its opinion on the primacy and uniformity of EU law. The case highlighted the difficult nature of rights protection in the EU. However, it also showed that the CJEU admitted that the level of protection for fundamental rights, for example, a right to a fair trial, may be lower than the level of protection guaranteed by the Convention because of the supremacy of EU law.

The above case also shows the differences between the two European Courts, while the Court on Human Rights interprets the Convention’s rights as a minimum standard, the EU mainly interprets EU rights standard as a maximum. Perhaps the jury is still out, and I should ask the rhetorical question. When it comes to human rights in Europe, are there really two rules and two protections?

  1. Protection of copyrighted work on the Internet and Service Provider Liability

We are all aware of the development of the Internet with new IT technologies contributing to largely uncontrolled exploitation of property protected by IP rights, including materials covered by copyright protection.

Apart from the problem of copyright infringement by individual Internet users or just end-users. There is the issue of the liability of businesses providing services on the Internet, who do not use the materials themselves but make the technical infrastructure available that enables their transmission, storage and use – and so contribute to copyright infringement.

As a response to this, the Electronic Commerce Directive (2000/31/EC) was intended to provide so-called “legal security”  by ensuring effective copyright protection on the Internet, but also safeguarding the interests of internet service providers.

Under Polish jurisdiction, the issue of liability for infringement of third party rights including copyright by service providers operating online is governed by the Provision of the Electronic Services Act of 18 July 2002. (Journal of Laws of 2002, No. 144, item 1204, as amended).

Under this statute, businesses providing services by electronic means are not obliged to verify the data they transfer, store or make available in terms of potential violations. At the same time, the act provides, like the Directive, liability exemptions which differ depending on the category of services provided. i.e. ‘mere conduit’ or pure transmission, caching and hosting.

It should be noted that the Polish Provision of Electronic Services Act substantially modifies the rules contained in The Electronic Commerce Directive on excluding liability for copyright infringement by service providers that provide hosting services.

In addition to the above statute, specific rules governing the use of copyrighted works by ISPs are set out in the Copyright and Related Rights Act of 4 February 1994. (Journal of Laws of 1994, No. 24, item 83).

It should be noted that the Polish legal system does not contain regulations typical of the “fair use” doctrine. However, It recognises the concept of  ‘permitted use’ and provides that no case of permitted use can infringe the ordinary use of the work or violate the legitimate interests of the author.

The most important cases of permitted use that are set out in the Act include amongst others:

  • personal use;
  • temporary reproduction, if it is of a transitory or incidental nature, having no independent economic significance but constituting an integral and fundamental part of a technological process the purpose of which is to enable: transmission of a work through the data transmission system between third parties by an intermediary; or the lawful use of a work;
  • the use of works listed in the statute for information purposes (reproduction, dissemination);
  • the use of works by educational and research institutions for teaching and research purposes;
  • the right to quote;
  • the exhibition of artistic work by the owner of a copy (exhibiting);

It should also be made clear that Polish copyright law is based on the Latin model, which provides for the legal protection of personal copyright as well as the creator’s economic (property) copyright. Only the latter one is negotiable, which works by way of an assignment of rights. The personal copyright cannot be taken away.

Within this context, there was an interesting case of the alleged infringement of copyrighted work which was a photograph recently commented on in the Polish media concerning a famous blogger,  the daughter of our former Prime Minister Donald Tusk -Make Life Easier.

This is a typical blog that could be described as a mixture of fashion and interior design with a healthy lifestyle and healthy eating recommendations.

On the last day of December Kasia (that’s the name of the blogger) informed her readers that the photo of her bedroom window that she had taken and posted on Instagram was subsequently used without her knowledge and permission by ZARA HOME for a campaign. The picture had been modified by the Zara Home and the company displayed its products on the picture.

As the blogger is a professional photographer it was assumed that the photo would fit the characteristics of a creative work, which you cannot use without the author’s consent.

Under Polish law, the mere publication of a photograph on the Internet, for example, on social media, is not the equivalent to giving such consent. However, a contract of assignment or a license agreement may authorize you to do so. Alternatively, you can also use the photo under the right of quotation. And this is where the matter becomes a little complicated. If we read Instagram’s rules carefully, it turns out that sharing, publishing or sending content using their service means granting Instagram a license to the content as well as a transferable license. This means that the service provider (in this case Instagram) can grant further licenses to other entities. So it could have been the case that Zara Home actually obtained a license from Instagram. However, even if this was the case, the copyright would have been infringed anyway.

By using the photo of Kasia Tusk, Zara Home violated more than just property rights.

So far, it is not known whether Zara Home used Kasia Tusk’s photos under a license. However, it does not change the fact that the violation actually took place. Even if not in connection with the infringement of the author’s economic rights, there is still the question of personal rights. Among them is the right to the integrity of the work.

Since the integrity of the content and the form of a work is a personal right and not a property right, it remains inextricably linked to the author. To put it simply, even if Kasia Tusk transferred the author’s economic rights in the photograph to Zara or Instagram granted the store a license, it would still have to obtain the author’s consent to make any changes to the work. However, there is no doubt that replacing elements of the photo with pillows from the store’s collection was a violation of the work’s integrity.

  1. Jurisprudence (ECHR & CJEU) vs Law (Directives)

I risk stating the obvious, when I say that since the beginning of the Internet era, there have been ongoing discussions regarding the state of regulation concerning the scope of liability for ISPs to overcome legal security issues in terms of IP protection.

On one hand, there has been a legal concept proposed which aimed at imposing maximum responsibility for the publication of materials on the Internet on the ISPs as they have the necessary tools to remove any unlawful materials and can easily identify the perpetrators.

On the other hand, many academics and lawyers have argued that such a concept is not in keeping with the concept of a fair trial and does not ensure a fair balance between the rights of a potential claimant and other protected rights such as privacy,  freedom of speech and the freedom to conduct a business.

The two directions have also been reflected in the CJEU’s Jurisprudence and other European courts. Some of them showing a liberal approach, others a very strict one in terms of the ISP liability

The most significant CJEU rulings in this context include the following cases:

– C-484/14 Tobias McFadden vs. Sony Music Entertainment (Secondary Liability for Open Wireless Networks in Germany)

In this case, the CJEU concluded that how the ISP’s liability is framed in the  Electronic Commerce Directive gives theservice provider a right to supply access to a communication network as their business and that the public or society has the right to freedom of information.

– C-70/10 Scarlet Extended SA vs  Société belge des auteurs, compositeurs et éditeurs SCRL (SABAM),

The main issue for the CJEU was whether under several EU Directives

[on Electronic Commerce (2000/31), the Information Society Directive (2001/29), the Enforcement Directive (2004/48), the Data Protection Directive (95/46), and the Privacy and Electronic Communications Directive (2002/58) ]

and in light of applicable human rights it is correct to issue an injunction against an ISP to force them to introduce a system of filtering all electronic communications for an unlimited period, at its expense to block unlawful use or transfer of copyrighted works.

The  Court concluded that Scarlet’s obligation to install a filtering system would in effect make the company carry out a costly general monitoring function for an unspecified period, contrary to the Electronic Commerce Directive.

Furthermore, the Court noted that the fundamental right to property, which includes IP rights “must be balanced against the protection of other fundamental rights.”

In – C-314/12 UPC Telekabel Wien GmbH vs. Constantin Film Verleih GmbH and Wega Filmproduktionsgesellschaft mbH,

An ISP in this case acted as an intermediary by allowing users to access copyrighted material on their website which meant that under Article 8(3) of the Information Society Directive (2001/29/EC) the copyright holder could apply for an injunction.

The court held that a national court may issue an injunction against an ISP in such a situation, but it must be balanced against the public interest in accessing the information.

– C-324/09 L’Oréal SA and others vs  eBay International AG and others

L’Oréal, the French cosmetics company, is the proprietor of several national trademarks in the UK, as well as community trademarks within the EU. The company brought infringement actions against eBay, its European subsidiaries, and individual defendants who had sold several counterfeit items resembling brand names associated with L’Oréal.

Among other claims, L’Oréal argued that eBay was liable for the use of its trademarks by displaying them on the website and the advertising-sponsored links provided by Internet search engines, such as Google. In 2009, the UK High Court stayed proceedings pending a preliminary ruling by the CJEU in light of the applicable EU directives.

The Court held that a trademark proprietor is entitled under the Trade Marks Directive (89/104) and the Community Trade Mark Regulation (40/94) to prevent the operator of an online marketplace from advertising its goods without consent which were targeted at consumers in the EU. The Court also ruled that eBay may not be exempt from liability provided under Article 14(1) of the Electronic Commerce Directive 2000/31 when it plays an active role in the sale of goods by optimizing the presentation of offers or promoting them.

Concerning eCommerce platform content filtering systems, the CJEU held that eBay is an intermediary within the meaning of the third sentence of Article 11 of the Enforcement Directive (2004/48) and the injunctions against such intermediary may be issued, however the injunctions must be effective, proportionate and deterrent, without creating restrictions on legitimate trade.

The cases and decisions I have highlighted seem to confirm that there is no uniform position for the CJEU when it comes to the IP infringement on the internet. Therefore, we might conclude that EU law, including the jurisprudence, is in a constant state of development concerning the issues discussed because of the evolution of New Technologies.

The regulators at both EU and national level have found it necessary to amend the existing provisions regarding the internet sphere and upgrade the security rules for digital platforms, services and products.

To this end the Digital  Service Package will soon enter into force to complete the EU Digital Single Market.

At this point, I would like to mention that the Polish government has recently also introduced a new bill referred to as the “Freedom Act” which governs the issue of freedom of speech on the Internet.

The aim of the bill, as our Minister of Justice expressed, is to prevent ISPs from blocking content posted by internet users provided it does not violate Polish law. Under the bill the person whose posts or comments have been blocked will be able to appeal to the Council for Freedom of Speech and it will be for the Council to decide whether the measure applied by the online service provider was justified or not.

Many lawyers  have taken the position that the bill contradicts the DSA project (on which the European Union, including Poland, is currently working intensively) to a certain extent by, for example, granting protection only to Polish Internet users or not defining “unlawful” content. The EU regulation on digital services, as a supranational law will supersede the Freedom Act, which may be a major complication for Polish Internet entrepreneurs who are at risk’ from having to adapt to the requirements of both acts.

Concluding the question of whether the legitimate interests of all internet users and ISPs may be fairly protected and secured under new EU legislation and Member State national laws remains still open for further discussion.

The European Convention on Human Rights – vivid and powerful legal instrument?

December 10, 2020

Marzena Świstak

The Convention for the Protection of Human Rights and Fundamental Freedoms, customarily referred to as the European Convention on Human Rights, was opened for signature on 4 November 1950. Therefore, this year there is a special moment to underline the significant role of that international regulation. In adopting the text of the Convention, the Member States of the Council of Europe expressed a common heritage of political ideals and traditions, respect for freedom and the rule of law, but also the respect for the rights expressed in the Convention. The proper understanding and application of the Convention by States Parties was to be ensured by the European Court of Human Rights (established in 1959). The Republic of Poland signed the Convention on 26 November 1993 and ratified it on 19 January 1993. From 1 may 1993, it also recognized the jurisdiction of the European Court of Human Rights.

By acceding to the Convention, each country confirms the will to ensure, in real terms, the fundamental rights and freedoms expressed in it. The aforementioned are considered as the foundation of justice and peace in Europe. The European Convention on Human Rights has become the most important Treaty in the Council of Europe acquis (now there are 47 States as parties to that regulation). The European Convention on Human Rights has played an important role in the development and awareness of human rights in Europe.

The European Convention on Human Rights is a unique human rights protection system at European and global level based on an individual complaint mechanism to the European Court of Human Rights And to supervise the implementation of its decisions by the Committee of Ministers of the Council of Europe. It is often the last or even the only instance of appeal for people whose rights have been restricted or even breached. The governments of individual States Parties to the Convention have the duty (and even the right) to appoint candidates for the judiciary among the highest moral level and recognized uncontested legal qualifications. They shall also ensure that the national legal system is functioning in a manner that respects the values and principles of the Convention. An individual complaint to the Court should be considered as a last resort. What is more, if it has been already submitted and, as a consequence, resulted in a judgment, the State is obliged to implement it immediately and fully.

From the perspective of almost thirty years, there is no doubt that participation in the European Convention on Human Rights has affected (and still affects) a fundamental change also in the Polish legal order. This led e.g. to eliminate institutions and practices that are incompatible with the values of the Convention. It was also an impetus for national legislators to introduce solutions resulting from the authoritative interpretation of the Convention (e.g. the provisions on zabazan claims) and fundamentally influenced the Polish courts and tribunals’ judicial trend. Between 1993 and 2015, the European Convention was a crucial, international signpost of the right direction for the evolution of the regime of the Republic of Poland toward a model of the rule of law.

Under the Article 9 of the Polish Constitution, Polish public authorities are bound by judgments of courts or decisions of other international or supranational bodies. In practice, this problem is primarily a matter for the rulings of the European Court of Human Rights. Although such judgments do not directly bind the authorities and they do not directly shape the legal situation of persons, for example, they do not cause the repeal of acts of national law which have infringed human rights. However, the statements in the European Court of Human Rights rulings indicating violations of the Convention mean that the national authorities acted unlawfully. These authorities may not contest the decision of the European Court of Human Rights that the infringement existed.  The judgment requires the State to take action to restore legal compliance. However, in situations where international law standards are directly applied, this application should take into account the importance (interpretation) of the international bodies legal analysis. The consequences of the statement of an infringement of personal rights create certain obligations between the victim and the country which committed the infringement. It is understood that the issuing of a judgment declaring an infringement of the Convention constitutes a „right of redress”. Furthermore, the State should take all necessary steps to eliminate the effects of the infringement has been found and restore the situation. Nevertheless it should be posed that the mere fact of finding an infringement of the Convention does not create an obligation to take precise action. Member States have the freedom to choose the way to redress the judgment, which cannot be taken over by the European Court of Human Rights. It is not possible to order any State to amend its internal legislation. The Convention does not, however, impose any obligation to resume legal proceedings which have become final. Otherwise, it would entail a significant reduction of a feeling of legal certainty. The need to prevent further infringements, must not involve modification of a specific resolution already issued, but may consist the impetus to undertake specific steps to avoid similar, wrong actions in the future. The inability to resume legal proceedings should not be understood as the ignorance by a State Party to the Convention.

The significance of the Convention is not to be underestimated. It is not only the voice of history. The most influential framework of rights that should be protected is under the regulation of the Convention. Just name the Article 6 that provides a detailed right to a fair trial, including the right to a public hearing before an independent and impartial tribunal within reasonable time, the presumption of innocence, and other minimum rights for those charged with a criminal offence (adequate time and facilities to prepare their defence, access to legal representation, right to examine witnesses against them or have them examined, right to the free assistance of an interpreter). The majority of convention violations that the court finds today are excessive delays, in violation of the „reasonable time” requirement, in civil and criminal proceedings before national courts. Another significant set of violations concerns the „confrontation clause” of Article 6 (e.g. the right to examine witnesses or have them examined).

Nevertheless, there are many protection areas, that may be mentioned also as crucial and actual at the moment. It is enough to mention academic freedom requirement that should be guaranteed in the democratic society. Though academic freedom is not explicitly provided for in the European Convention on Human Rights, the European Court of Human Rights has brought issues regarding academic freedom within the ambit of the Convention. It tends to do so under Article 10, which guarantees freedom of expression. What is more, even in the Polish legal system recently there have been undertaken legislative measured within the area mentioned. The statutory draft of “package of academic freedom” should be mentioned. The aforementioned shows that the Convention’s regulations are constantly vivid in the legal area. It is not a “distant regulation”, but a fundamental framework that may be used as a flexible instrument of human rights’ protection.

The European Convention on the Protection of Human Rights and Fundamental Freedoms – Seventy Years Onwards

December 3, 2020

Marzena Mierzewska

Katarzyna Kłobukowska

On 4 November 1950 the European Convention on the Protection of Human Rights and Fundamental Freedoms was adopted. Seventy years have passed since that momentous date. The Convention sets forth a number of fundamental rights and freedoms (right to life, prohibition of torture, prohibition of slavery and forced labour, right to liberty and security, right to a fair trial, no punishment without law, right to respect for private and family life, freedom of thought, conscience and religion, freedom of expression, freedom of assembly and association, right to marry, right to an effective remedy, prohibition of discrimination). It also created an enforcement mechanism : each and every person under jurisdiction of states parties can bring an individual complaint about a breach of her or his rights before the European Court of Human Rights based in Strasbourg, France.
Since 1950 Europe has changed beyond recognition and so has the legal environment within which each and every practicing lawyer in Europe works and thinks about law. A question naturally arises in this connection what is the Convention’s relevance today to practicing lawyers’ everyday work and to their involvement in public matters.
This anniversary coincides with the worldwide pandemics of COVID 19. The pandemics affects – and not for the better – the way in which human rights, including those protected by the Convention, can be exercised, enjoyed and vindicated. It is the responsibility of lawyers to scrutinise the manner in which this calamity restricts individual rights and to react where necessary.

What do we owe as lawyers to the Convention ? What is its significance today for citizens of Europe in turmoil, to the troubled societies and political systems in flux?

It came as a bad surprise to many, including the legal community in Europe, that values and fundamental ideas which the Convention embodies and protects are currently under attack in many countries. Indeed, the « common heritage of political traditions, ideals, freedom and the rule of law », referred to in the Preamble to the Convention, is being either denigrated by public authorities, or openly disregarded in the application of laws, or both. The very notion of « effective political democracy » that the Preamble reaffirms is in certain countries reduced to mere majority rule, without proper regard to division of powers, checks and balances and the situation of political minority. Worse, there are sad examples of overt and unashamed violations of human rights in certain countries.

In this context the Convention and human rights can no longer be taken for granted. « Observance and common understanding » of human rights are not a given we have somewhat blithely assumed during the last thirty years to serve as a bottom line for the actions of all public authorities. Hence, the obligations, attitudes and emotions of the legal community towards the Convention should evolve in the light of recent developments. What are those obligations ?

In our view, the are the following :

Firstly, to ensure that practsing lawyers are well aware of the Convention’s – and, broadly, human rights – significance to their everyday practice. The Strasbourg Court is not a far away institution interested in lofty ideas and grandstanding, unrelated to the realities of legal practices in big and small cities in Hungary, Poland, France or Spain. Human rights are relevant to our clients’ cases before the each and every court in Europe. Be it in a civil case where the essence of access to court is restricted by unduly high court fee, or in a criminal case where a lawyer cannot have access to a freshly detained person who is being questioned by the police in lawyer’s absence, or in an administrative case concerning the amount of compensation to be paid by the state for expropriation of property – all those apparently run- of- the-mill situations known to every lawyer touch upon the rights guaranteed by the Convention. It is the lawyer’s responsibility to raise human right complaints before the domestic courts all the way to the highest national court ; also to comply with an obligation to exhaust domestic remedies before bringing an application about a breach of individual rights to Strasbourg. In other words, it is the lawyer’s obligation to rely on and to invoke the Convention rights and guarantees in our everyday practice ; not necessarily in order to bring the case to Strasbourg, but also to remind the courts and all public authorities that human rights are normal part of the legal landscape in which they operate.

In order to be able to do so, human rights education and knowledge of the Court’s case law must be a natural part of legal training, both this leading to access to legal professions and the ongoing one. The Court’s case-law is vast, the Convention is a living instrument adjusting itself to changing realities of modern life by way of the Court’s decisions and judgments. It is our responsibility to follow it, to make it a part of our legal thinking and, importantly, to learn and teach within the profession how the Convention standards are to be made operational in our country, in the context of our legal systems and in cases where we represent clients.

In the context of public life it is a major task of the professional associations to be vigilant and able to assess new legislation, parliamentary bills and practice of the public authorities from the Convention perspective. Does a new statute respect the Convention standards ? Will a Bill debated by national parliament enhance human rights or rather shamelessly breach them ? Do public authorities willing and able to assess human rights consequences of legislation they envisage ? Does the established practice of domestic courts, prosecutors, police and public administration take heed of the Convention standards ? Do we as associations of legal professionals have enough resources to carry out such assessment ? Do we have human rights bodies within our associations which are tasked with it ? Is the voice of such bodies heard within our professional associations ? Do lawyers’ associations take position and voice their concerns where human rights are breached or disregarded by the public authorities ? Of course the position and importance of professional associations of lawyers in public life will vary from country to country depending on their seriousness, longevity, national legal tradition – and by willingness, or lack of it, they display to take part in public life. It is for us lawyers to make our professional associations actors of public and political life instead of mere trade unions concerned only with defence of our professional interests. To sum up, the Convention, the Strasbourg Court’s case law and, more broadly, human rights are a yardstick by which public policies, laws and public governance should be measured – and legal professions should be willing and able to take them to task.

« Dialogue between the European Court of Human Rights and the national judicial systems is fundamental to the Convention system. » said Robert Spano, the Court’s President elected in 2020, in his recent message to the Superior Courts Network, set up by the Court in 2015. The task of the Network is to ensure the effective exchange of information between the Court and the national courts belonging to the Network, on the case-law of the Court, Convention law and practice and the domestic law of States whose superior courts are members of the Network.
Indeed, the national courts are primary actors who have a central role to play, implementing the principles and values of the European Convention. It is for the courts to apply the case-law of the Court in everyday judicial practice ; not only superior courts but for each and every court in Europe. It is the responsibility of judicial systems to make the Convention a part and parcel of judicial training. The attitude of the courts to lawyers invoking the Convention and the Court’s case-law in their submissions made on behalf of the parties will certainly vary, depending on the substance of the case, on the clarity of the argument made by the party, on the relevance of the human rights element to the subject matter of the case. However, it also happens that the courts routinely disregard or lend a deaf ear to arguments based on the Convention, either because they do not understand them or because they consider them irrelevant or because they are of the view that they are not obliged to apply the Convention in their decisions. It falls to the lawyers to keep the courts awake to the Convention as living and binding legal reality.

We can and should think of the ways in which strategic legislation techniques are to be used in order to correct discrepancies between our national legal systems and the Convention standards. A finding of a violation of the Convention rights by the Strasbourg Court gives rise, on the one hand, to an obligation on the part of the respondent state to comply with individual measures provided for by that judgment. Most often, it would entail payment of the amount of just satisfaction awarded by the Court. On the other hand, the judgment imposes on a respondent state an obligation to amend domestic laws or practices in which the violation originated. Hence, the Convention system provides for a mechanism by which national laws incompatible with human rights can eventually be changed. On the national level, some serious thinking should be given by legal assiciations on ways and means of identifying problems which raise an issue as to their compatibility with the Convention. Legal community should not only be aware of such problems, but also actively be on the lookout for and search live cases before domestic courts where such problems are involved. Such cases, if lost by the party to it before national courts, can further be brought before the Strasbourg Court with a view to obtaining a judgment to the advantage of an applicant whose rights have been violated on the domestic level. Ideally, some coordination in identification of such problems, finding appropriate leading cases and encouraging parties to it to bring them before the European Court of Human Rights is certainly called for within legal professions. It is of course in the nature of things that representing the applicants before this Court in cases which can be vehicles for legal reform is of essence.

It is common knowledge that the Strasbourg Court has a very heavy docket. Currently approximately 60 thousand cases are pending before it. It has also been often criticised for the time it takes the Court to rule on an individual case. Quite apart from the reasons of such length and from various and well-known measures which have been taken over the last twenty or so years to make the Court act more speedily, it is a lawyer’s professional and ethical obligation to support her or his client who might get discouraged and disappointed by the duration of the proceedings. It should be borne in mind that the case most often than not touches on issues of vital importance to the client, not only legal one, but oftentimes also emotional or even existential. This can be said in particular about cases touching on matters of private and family law, children access cases, cases relating to personal identity, names, gender or cases concerning medical or health issues. There’s more to those cases than just interesting legal issue ; there’s also a human life story against which such issue has arisen. It is the lawyer’s responsibility to convince the client that his or her case is worth being taken to the Strasbourg Court and to accompany the applicant throughout the long legal life of the case, both in legal and sometimes also emotional terms ; it is for the lawyer to demonstrate perseverance and courage and to hold the client’s hand, so to speak, until the end of the case, in the hope that the outcome will be to the client’s favour.

Against the background of COVID 19 and the rise of populisms in a number of countries it is important that lawyers educate the society at large. Human rights are not luxury that can be dispensed with in difficult times. The Convention is there to protect rights which way too often are currently presented to the public as impediments to various government policies, allegedly designed to combat the pandemics and to enhance security. It is for the lawyers to remind the general public the substantive content of rights guaranteed by the Convention and to alert it to dangers of shortcuts taken or envisaged by public authorities. Failure to do so may contribute to rendering rights guaranteed by the Convention and interpreted by the Strasbourg Court toothless and regarded by the powers that be as mere lip service of no relevance to political realities and to everyday life. Worse ; certain governments and public officials have adopted and encouraged hate speech against marginalised groups, against LGBT people or migrants, women or people of minority religions, or against citizens not sharing the views of the ruling parliamentary majorities in order to rule by fear.

It is vital to have the best and brightest human rights lawyers sitting on the Strasbourg bench. Currently, terms of office of nine judges (Bosnia/Herzegowina, Moldova, Croatia, Russia, Belgium, Poland, Czech Republic, Greece and Switzerland) have either come to end or will end shortly, in 2021. Either relevant domestic procedures are under way in order to form lists of three candidates ; one of them will later be elevated to this judicial post by a vote in the Parliamentary Assembly of the Council of Europe. Legal communities are well placed to monitor the national procedures and to see to it that they are fair and transparent. The Convention itself does not provide for any specific manner in which the candidates should be selected on the national level, but human rights lawyers and legal associations should insist that the involvement of the civil society at large, the academia, the professional associations and also the parliamentary bodies in this national selection procedures is significant. The decisions in this respect should not be made behind closed doors of ministerial offices. It is obvious that the Strasbourg judge mustn’t be a representative of state, but a human rights judge, committed, hard working and respected by his or her peers in the national legal community – but it always serves a purpose to publicly repeat this apparent platitude.

Human rights go hand in hand with rule of law; they are intrinsically intertwined. Hence, the community of practicing lawyers in Poland regard certain acts and declarations of the political powers with mounting concern. The authority of judicial institutions has been undermined or compromised, the election laws have been amended so as to weaken guarantees of fair elections, women’s rights, especially reproductive rights, are under attack, statutes are adopted with unseemly haste, without proper parliamentary debate ; in short, human rights are in danger.

We are certainly living in interesting times. Human rights are not something which has been safely acquired and irrevocably won. We cannot be complacent about them. Let us have a good rest during the coming festive season – and let’s come back to work full of new energy in the defence of human rights and rule of law.

Case Jezior v. Poland

August 19, 2020

Marcin Drzewicki

I. Statement of facts

Mr Andrzej Jezior, residing in Ryglice (Małopolskie Voivodship) [Applicant], ran a blog related to local matters. He was also a candidate for the municipal council in 2010. Readers of the blog were able to publish comment without the need to register an account. However, the Applicant did include a letter of instruction in which he indicated that he was asking for only thoughtful and factual comments, and not suppositions. Moreover, the comments could not be offensive. The Applicant also encouraged to publish comments signed with full name and not anonymously. On 5 November 2010 (about 2 weeks before the local elections), an anonymous offensive comment was posted on the blog about the mayor of Ryglice, who was seeking re-election, and his family. It was immediately removed, but after a while it was posted again. On 9 November 2010, the offensive comment with identical content was re-published and then removed immediately. As a result, the Applicant decided to introduce access control and require prior user registration.

I. a) Judicial proceedings under the Election Act (ustawa o ordynacji wyborczej do rad gmin, rad powiatów i sejmików województw z dnia 16.07.1998 r.) [Election Act]
On 12 November 2010, the mayor submitted an application to the court under Article 72 of the Election Act. By the judgment of 15 November 2010, the regional court in Tarnów allowed the mayor’s request, forbid the Applicant to further disseminate the content of the comments on the blog and ordered to apologize mayor on his blog. Moreover, the court ordered the Applicant to pay 5.000 PLN (around 1200 €) to a charity organisation and reimburse the court fees. In the reasons for the judgement, the court emphasized the special nature of the procedure governed by the Election Act, pointing out that the purpose of this procedure is to ensure that remarks that have not been proven and may adversely affect the candidate’s reputation during the elections are corrected as soon as possible. Considering Article 72 of the Election Act and article 24 of the Civil Code, the court found that the comments published on the blog were propaganda material and their content was unproved. Furthermore, the court concluded that the Applicant is the party who maintained the blog and therefore was obliged to ensure that the comments on it were truthful.
The Applicant appealed to the Kraków Appeal Court, arguing that the first instance court had failed to take into account the blog’s specific nature as a means of communication and had wrongly held him responsible for the content of the comments posted on the blog. Moreover, the applicant indicated that the court of first instance did not consider article 14 of the Act on the provision of electronic services of 18 July 2002.
By the judgment of 17 November 2010, the Kraków Appeal Court dismissed the Applicant’s appeal. He shared the position of the first instance court, finding that the Applicant was in fact responsible for the comments posted, as he had not prevented their publication.

I. b) Judicial proceedings under the Civil Code of 23 April 1964 regarding the protection of personal rights
After he failed in the elections, the mayor sued the Applicant claiming that there was an infringement of his right to good name under Article 23 and 24 of the Civil Code. By the judgment of 3 October 2011, the Regional Court in Tarnów upheld the claim and obliged the Applicant to apologize the mayor by publishing a statement in the press and to pay 1.000 PLN in respect of non pecuniary damage.
The Applicant appealed against the first instance ruling. By the judgment of 19 January 2012, the Kraków Appeal Court overruled the judgment and dismissed the mayor’s claim. The court found that it was undisputed that the comments infringed the mayor’s personal rights, although the Applicant himself was not their source. The court stated that the requirements of freedom of expression and the specificity of Internet hosting services preclude any form of prior checking by the host of the content shared. Even in the case of posting on a website content that could adversely affect someone else’s reputation, the slightest control on that content by the host would be contrary to freedom of expression. The court finally found that the Applicant could be responsible for publishing the comments only if he did not remove them immediately, which was not the case.

II. Legal status
The Applicant, relying on Article 10 of the Convention for the Protection of Human Rights and Fundamental Freedoms [Convention], alleged that the rulings made in his case (under the Election Act) breached his right to freedom of expression, which was protected by the Convention.
The European Court of Human Rights [The Court] found that the domestic judgments delivered against the Applicant constituted interference by public authorities with the exercise of his freedom of expression within the meaning of Article 10 of the Convention. The Court noted that, in order not to violate Article 10 of the Convention, such interference had to be „in accordance with the law” and pursue a legitimate aim in accordance with paragraph two of that article and, moreover, be necessary in a democratic society to achieve that goal (Magyar Tartalomszolgáltatók Egyesülete i Index.hu Zrt v. Hungary, no. 22947/13, § 46, judgment of 2 February 2016). The Court stated that it was not responsible for adjudicating on the appropriateness of the measures chosen by the legislator to regulate a specific area; its role is limited to verifying that the methods adopted and the consequences attached thereto are consistent with the Convention (Gorzelik v. Poland, no. 44158/98, § 67, judgment of 17 February 2004). Consequently, the Court limited itself to examining whether the adoption of the Article 72 of the Election Act in conjunction with Arts. 23 and 24 of the Civil Code by the domestic courts was provided for the purposes of Art. 10 § 2 of the Convention.
The Court noted that in the present case the Applicant had decided to allow internet users to post comments without prior registration, but at the same time had introduced certain measures to detect potentially illegal content. The Court also noted that the Applicant had posted a message to users, urging them to respect the principles of good conduct and the rights of others. It is also important that the applicant immediately withdrew the disputed comments as soon as he was informed of their presence. In addition, he temporarily introduced access control and the obligation to register users in advance with an e-mail address.
As regards the domestic proceedings, in which the Applicant was ordered to stop disseminating the disputed comments and to apologize for them and was ordered to pay 5.000 PLN to a charity organisation and reimburse court fees, the Court found as follows. Following the cumulative application of the above-mentioned measures against the Applicant, he was subject to a sanction that could have an inhibitory effect on someone who, like himself in the present case, runs a blog. In this regard, the Court reiterated that the attribution of liability relating to comments from third parties may have negative consequences for the space reserved for comments on a website and discourage freedom of expression on the internet (Magyar Tartalomszolgáltatók Egyesülete and Index.hu Zrt v. Hungary, no. 22947 / 13, § 46, judgment of 2 February 2016 and Delfi AS v. Estonia, no. 64569/09, § 144, judgment of 16 June 2015).
In conclusion, the Court stands in a position that the domestic courts, which adjudicated in the proceedings instituted against the Applicant under the Election Act, failed to ensure a proper balance between the right to freedom of expression and the mayor’s right to respect his reputation as a candidate in local elections. The judgments of the domestic courts constituted a disproportionate interference with the Applicant’s right to freedom of expression and were therefore not necessary in a democratic society. Therefore, there has been a violation of Article 10 of the Convention.

III. Judgment assessment
This judgement is the first ruling determining about the notice and takedown procedure in a case concerning the obligation to remove content in a political debate. The Court – contrary to the Delfi A.S. v. Estonia (cited above) – held that the blogger could not be held responsible for the posted comments. It results from the case established facts, according to which the Applicant promptly removed the offensive comments, unlike in the Delfi case. Finding the Applicant as a person violating the Convention might have negative implications both for himself and for other bloggers who could be effectively discouraged from engaging in such activities.
Finally, this judgment should be regarded as a valuable and important guideline for Polish courts, which will probably have to deal with more similar cases. There is thus no doubt that in the present case the European Court gave an unequivocal priority to Article 10. However, the question arises whether this judgment has neglected or not to place a proper balance for the protection of reputation of others in this case?

Link to the full text of the judgment

Dealing with the Covid-19 crisis in Lithuania – concerns for human rights?

June 1, 2020

Mindaugas Kukaitis

I believe that no one has the moral right to say that there is no need to fight epidemics, pandemics and that every saved life is irrelevant to the state, although we must question whether the state has taken reasonable and adequate measures to prevent spread the disease while having all the legal instruments in its hands and while managing financial resources with the right intentions.

Before discussing whether the taken measures are adequate we need to look at the official statistics – average worldwide morbidity is 57 cases per 100 thousand population (fatality rate – 6,77 per cent); Spain – 488 (fatality rate – 11,9 per cent from diagnosed persons); USA – 444; United Kingdom – 356; Belarus – 294; France – 211; Germany – 210; Russia – 180; Turkey – 176; Lithuania – 54 (fatality rate – 3,54 per cent); Poland – 47;  Kazakhstan – 30 (fatality rate – 0,59 per cent); Georgia – 18.

There are only few situations when the state can legally restrict the individual rights and freedoms, i.e. by introducing martial law, by introducing a state of emergency and, as has now happened in Lithuania, the introducing a quarantine. Martial law – is a special legal situation established by the Constitution of the Republic of Lithuania and the Law on Military Situation of the Republic of Lithuania, which is introduced to protect the Homeland in case of armed attack or threat, when the sovereignty of the State of Lithuania or the integrity of its territory is threatened, or, if necessary, to fulfil the international obligations of the State of Lithuania in order to ensure the defence of the State and other vital functions of the State during the war. A state of emergency is a special legal regime in a state or a part thereof, which allows to apply temporary restrictions which are established in the Constitution of the Republic of Lithuania and the Law on State of Emergency on the exercise of the rights and freedoms of natural persons and temporary restrictions on the activities of legal persons. Quarantine, on the other hand, is a special regime for the prevention and control of contagious diseases introduced to individual establishments or infected areas when the prevalence of contagious pathogens of unknown origin or cases, outbreaks or epidemics of particularly serious contagious diseases are recorded. The purpose of quarantine is to establish special conditions for work, life, rest, travel, economic and other activities of persons and thereby limit the spread of contagious diseases (the Law on the Prevention and Control of Contagious Diseases of the Republic of Lithuania). If the first two situations clearly give the State the legislative power to restrict human rights and freedoms, then the legal and factual purpose of Quarantine is quite different, during which special conditions for work, life, rest, travel, economic and other activities of persons must be established. Nevertheless, after the introduction of the Quarantine Regime in Lithuania, it can be seen that some actions, decisions and prohibitions did not create special conditions, but simply limited, restricted, complicated parts of the natural human rights enshrined in the Constitution of the Republic of Lithuania (inviolability of the private life of a human; inviolability of the property; inviolability of the home of a human being; prohibition of limitation of judicial protection; prohibition of free movement, free departure from Lithuania; prohibiting or obstructing citizens to choose unarmed to peaceful meetings; opportunities for free choice of work and business, the right to decent, safe and healthy working conditions, fair pay for work and social security; the right to rest and leisure; the right to strike; the right to receive medical aid and services, and etc).

What is worrying?

Firstly, the Quarantine is not equal to a state of emergency or martial law, but the restrictions of Quarantine are greater than those of a state of emergency or war.

Secondly, all decisions on restrictions on human rights and freedoms have been transferred from the level of the Legislators to the level of the Government and even further below to the level of the Minister, although these decisions should be adopted and allowed only by the Parliament of the Republic of Lithuania.

Thirdly, decisions on restrictions are taken as a matter of urgency, without a mechanism for urgently defending violated rights, without an impact assessment, without a debate with the public, without a strategy disclosed to the public in advance, chaotically.

Fourthly, people’s dependence on power is increasing. In the absence of a revealed strategic plan for the application of restrictions, it is impossible to plan, predict, prepare for the actions of the Government, especially prohibitions, constraints, restrictions.

Fifthly, disproportionate prohibitions were applied or attempted to be enacted – it was aimed to legalize the control of data traffic on mobile devices as detailed in the Law on Regulation of Communications, attempted to restrict the constitutional right of medical staff to freely choose workplaces, involuntary treatment was introduced, the movement of the non-sick (healthy people) was limited by the property they own.

Sixthly, there is no prediction of legal certainty, clarity and action in today’s politics. It must be borne in mind that any restriction can be both a medicine and a poison with irreversible consequences.

What needs to change?

It is necessary to start with clear strategic plans on how to deal with the epidemic, when, what, how and under what conditions restrictive measures will be applied and how and when they will be lifted. Restrictions must be adequate, proportionate, timely and professionally justified.

The Lithuanian Bar Association has taken active steps to provide criticism and our own expert assessment of possible human rights violations in the legislation.

Representatives of the State did not assess the threat of the virus before its arrival, but the people have underestimated the increase in States‘ power at the expense of human rights. Government must serve the people, not the other way around. The minimum thing we need to do immediately is to return our free thoughts to the thoughts of the former free man and to defend the fundamental principles of human rights.

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