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Court: users’ data may be disclosed to the prosecution service but a post must be proved to have been defamatory

The District Court in Chrzanów described a proper procedure that should govern law enforcement bodies access to IP addresses and other data on the Internet users who post comments on websites.

The prosecution service should first examine the content of online comments for the presence of features of a criminal offence and only then possibly demand a website’s editorial staff to disclose the data of the authors of comments which have been classified as defamatory. The HFHR has filed an amicus curiae brief in this case.

The case concerned przełom.pl., a local information portal. A prosecutor’s office ordered the website’s editorial staff to disclose the IP addresses and data of users of the portal who were commenting on posted articles. The editor-in-chief appealed against this decision. After a series of appeals against the decision of the prosecution office and the court’s decision on the disregarded complaint, the appeal was finally accepted.

The court admitted that the website’s administrator had the right to question the reasonableness of the decision requesting the disclosure of IP addresses and other data of commentators active on the portal. The case was remanded for rehearing. In the justification of its decision the court stated that “the prosecutor should in the first place ask the data administrator to disclose the content of posts. Then, once the content has been examined, the prosecutor should decide which posts are insulting, defamatory or humiliating. Only then should the authorities focus on identifying authors of such posts and specifying the scope of data of the forum’s users, which are supposed to be disclosed by the administrator.”

The HFHR has filed two amicus curiae briefs in this case. The first brief concerned the eligibility to file a complaint against a prosecutor’s order to disclose data while  the second one  discussed the reasonableness of the very request for a disclosure of data by the administrator. In the second brief the HFHR stated that the prosecution service or the police may request an administrator to disclose the data only if such disclosure is necessary for pending proceedings – especially if the data is evidence in a case. “That is why they should first demand a disclosure of the complete content of the posts, and only later, in a separate decision, request the disclosure of the IP addresses and other electronic data.

“This case brings about two important conclusions. First of all, the court confirmed that a website’s administrator has the right to challenge the reasonableness of the decision of a prosecutor requesting the disclosure of IP addresses of persons commenting on the website before a court. Second, law enforcement bodies must have actual grounds for requesting such data and should verify the content of the posts prior to making such a demand. Unfortunately, we often encounter situations where critical posts are within the limits of the law and the motives of persons who file a report of a suspected crime are limited to the desire to find out the identity of persons who posted such messages. In such a situation the law enforcement authorities should not request the disclosure of the data”, stated Dorota Głowacka, a lawyer of the HFHR.


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