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Poland – Data

Pillar I: The State’s duty to respect human rights

5. Planned changes in national legislation:

Addition of general principles in administrative proceedings:

Rules governing the liability of Internet intermediaries for hate speech and violation of freedom of speech [page 26]

The Ministry of Digital Affairs plans to draft a regulation to counteract restrictions on the freedom of speech, on the one hand, and to block illegal content on the Internet, on the other. Legislative work is being carried out that clarifies the procedure for notice and takedown of the illegal content online, as well as strengthens legal safeguards for freedom of speech in the activities of electronic service providers. These efforts address i.a. issues related to hate speech or incitement to violence, as well as the use of unauthorised technical restrictions on freedom of speech in social media.

Pillar III: Access to Remedy

1. Current situation regarding access to legal remedies

Protection under civil law [page 38]

…By applying these civil-law instruments, those affected can seek judicial protection of their personal interests, as well as claims for damages (personal or property).

According to Article 23 of the Civil Code (CC), the personal interests of a human being, in particular their health, freedom, dignity, freedom of conscience, name or pseudonym, image, privacy of correspondence, inviolability of home, and scientific, artistic, inventive, or improvement achievements are protected by civil law, independent of protection under other regulations. Article 24 § 1 and 2 CC stipulates that any person whose personal interests are threatened by another person’s actions may demand that the actions be ceased unless they are not unlawful. In the case of violation, they may also demand that the person committing the violation perform the actions necessary to remove its effects, in particular that the person make a declaration of the appropriate form and substance. Under the terms of the Civil Code, one can also claim monetary recompense or payment of an appropriate amount of money for the social cause indicated (Article 448 CC). If damage has been caused due to a violation of personal interests, the injured party may demand a remedy in accordance with general principles (Article 415 et seq. CC). The prerequisites for protecting personal interests that must be met together are: the existence of a personal interest, the threat or violation of that interest, and the unlawfulness of the threat or the violation. The first two premises must be proven by the plaintiff seeking protection, while the defendant can defend themselves, demonstrating that they did not act unlawfully. The distribution of the burden of proof is therefore favorable to the plaintiff. The legislator introduced the presumption of unlawfulness of the violation of personal interests (Article 24 § 1 CC). However, claims cannot be made if the perpetrator demonstrates that the occurrence of one of the circumstances rules out the unlawfulness of the action, and they thus indicate the circumstances that justified the violation of a particular personal interest. The provisions of Articles 23 and 24 CC suggest that the protection of personal interests is comprehensive. Its exercise may take on a different character and be pursued through various measures, which may be both non-financial and financial in nature. Non-financial protection measures include: a) – claim for cessation; b) – claim for removal of the effects of a violation; c) – assertion lawsuit; Financial protection measures include: d) – claim for redressing non-financial damage; e) – claim for recompense for property damage; f) – claim for restitution of unjust enrichment; g) –claim for non-performance of an agreement; h) – claim for non-performance of an agreement (contractual liability).

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