On the economic market, it is often the case that an entity dissatisfied with the services of a counterparty decides to publish a negative opinion on it, most often on various websites. The person posting certain information on the network shall be subject to the same rules as the person posting it on other media.
If the information given proves to be a talk, an untruth, defamation or violation of other people's personal property, such as personal dignity, then the Internet user who has spread it is exposed to criminal and civil sanctions.
According to Article 212 k.k.
who requests another person, a group of persons, an institution, a legal person or an organisational unit not having legal personality for such conduct or property as may demean it in the public opinion or expose it to a loss of confidence needed for a given position, profession or activity, shall be subject to a fine or penalty of a restriction of freedom.
In addition, if the offender commits this act by means of mass communication, he shall be subject to fines, imprisonment or imprisonment for up to one year.
It is, however, to be understood as attributing, accusing, accusing or accusing another person of a particular conduct or of a characteristic which, however, contains a negative assessment which, consequently, would lead to the humiliation of a public opinion or to a loss of confidence needed for a given post, profession or activity.
The content of the talk will usually be the published false information, but it should be noted that criminal slander may also, under certain conditions, concern true information.
Criticism is a socially beneficial and desirable action, but even if it is undertaken in the social interest, it must bear the characteristics of reliability, factuality and constructiveness, i.e. must be directed at preventing certain abnormalities or pathological phenomena, and not only to oppress the opponent
Pronunciation and Truth
According to Article 213 k.k. there is no defamation offence if the charge made in private is true. This crime is not committed by anyone who publicly raises or announces a genuine charge concerning the conduct of a public or socially legitimate interest person.
In this context, it should be pointed out that the protection of the provision Article 212(1) k.k. is the honour and dignity of a person who is accused of proceedings or properties which are contrary to law, to the principles of ethics, including professional ethics, and e.g. of lack of competence or ability to pursue a given profession.
The value in the form of the subject matter discussed should, of course, remain in balance with the need to protect other values, i.e.
the right to freedom of expression, the right to criticism and the possibility of acting by various bodies, whose task is, inter alia, to assess the suitability for the pursuit of the profession, in the form of verification of competences and capabilities, and the assessment of the ethical qualifications necessary to occupy certain posts, to perform different professions or to conduct certain activities.
However, critical assessments should be expressed in an appropriate form, especially when they are not expressed spontaneously or in the course of rapid exchange of words and in a planned and thoughtful manner.
For just as every person has the right to freedom of expression, so every person has the right to respect his private and family life, and the right to freedom of expression can legitimately be subject to restrictions on grounds, inter alia, of the protection of the good name and rights of others (excl.
17 March 2015, V KK 301/14, KZS 2015, No 6, item 15). The non-legislative countertype of the right to permitted criticism refers only to situations where such criticism is necessary, i.e. for the defence of a legitimate interest, it is necessary to violate the good name of another person or collective entity.
The limits of criticism are determined individually by the court
It is also worth noting that the assessment of the nature of the statement on the website, as fulfilling the character of the offence of insult or defamation, can only be made by careful analysis of the content of that statement.
Not only does the literal content of the statement affect its criminal-legal assessment, but the circumstances and place of its wording, as well as the earlier behaviour of the victim of the statement, as well as the content and manner in which it expressed certain opinions, are equally important.
It is not possible to determine in advance what kind of speech can be qualified as defamatory or insulting. Such assessment must be carried out by the court in each case, taking into account the specific and exceptional factual circumstances in the case.
As a result of this assessment, a court ruling in a case relating to the issue of acceptable limits of criticism on the Internet must determine whether the characteristics of defamation or insults have been fulfilled, both formally and materially, by duly motivating its decision, with reference to the way in which the statutory characteristics of the offences are interpreted, taking into account the elements of the social harmfulness of the act (Decision of the Supreme Court of the day 24 October 2017, V KK 278/17).
The content is also related to this issue Article 216 k.k., in which the offence of insult was settled. The essence of this act is the behaviour of the perpetrator, who, on the basis of adopted social and cultural standards, is a sign of contempt, abjection second Man.
The offence of insult is materially similar to the offence of defamation. The literature indicates that the most important difference between these crimes is the nature of the impact of the negative content expressed by the perpetrator.
In the event of defamation, we are faced with a charge, including the real one, which may degrade the victim in the public opinion or expose to the loss of trust needed for the given position, profession or activity, while in the case of an offence of insult, it is a charge typically abusive or derisive aimed solely at hurting the personal feelings of the victim.
Defamation and Personal Good
Under civil law, publication of critical opinions should be considered for the protection of personal property. According to Article 23 k.c.
personal property of a person, such as: health, freedom, honor, freedom of conscience, name or alias, image, mystery of correspondence, immunity of a dwelling, scientific, artistic, inventive and rationalist creativity, remain protected by civil law regardless of the protection provided for in other regulations.
On the other hand, someone whose personal welfare is threatened by other people’s actions may demand that they do not act unless it is not illegal.
In the event of a breach, he may also require that the person who committed the infringement complete the steps needed to remedy its effects, in particular that he or she make a statement of the appropriate content and form.
On the basis of the rules provided for in the Code, it may also require a cash settlement or payment of an appropriate monetary sum for the social purpose indicated. Furthermore, if a personal injury has been caused as a result of a breach of the personal good, the injured person may demand compensation on a general basis.
At this point, it must be pointed out that according to the view contained in the judgment dated 19 September 1968, II CR 291/68 „Criticism is a socially useful and desirable action if it is undertaken in the social interest, if its purpose is not to tease another person and if it has the characteristics of integrity and physicality.
The principles of social coexistence require that respect be maintained for each individual and that his self-respect, personal value and social usefulness be counted upon. Therefore, criticism of someone's actions, views or activities should not exceed the limits needed to achieve the social objective of criticism."
In summary, the limits of freedom of expression that define the limits of permitted criticism are broadly outlined when criticism is made to protect a socially legitimate interest, e.g. when criticism is used to protect consumers' rights.
Criticism is a socially beneficial and desirable action, but even if it is undertaken in the social interest, it must bear the characteristics of reliability, factuality and constructiveness, i.e. it must be directed at preventing certain abnormalities or pathological phenomena, and not merely to oppress the opponent.
The construction of negative opinions should therefore be based on facts and avoid epithets, especially those that may be considered offensive.
Author: Michał Wasilenko
Lawyer, Senior Associate in the Legal Department, member of the Bar Association in Lublin, graduate of the Faculty of Law and Administration at Maria Curie-Skłodowska University in Lublin. He specializes in commercial and civil law law.