Data Protection Laws and Freedom of Expression: Poland
Constitutional/Primary Law Background - see also ECHR and EU Charter
Article 54 of the contemporary Poland Constitution (1997 as revised 2009) prohibits censorship of the means of social communication including the licensing of the press (whilst allowing for permit requirements for radio and television stations) and guarantees freedom to express opinion and to acquire and disseminate information. Article 73 separately guarantees freedom of artistic creation, scientific research, their dissemination and freedom to teach and enjoy the products of culture. Express data protection rights as set out in Article 51 are largely confined to a right of access (with limitations under Statute) and a right to correct or delete untrue or incomplete information or that acquire contrary to statute. In addition, no one can be obliged to disclose information concerning themselves except by statute and public authorities are prohibited from acquiring, collecting or making accessible information on citizens unnecessary in a rule of law democratic state. Article 47 also establishes legal protection of private and family life, honour and good reputation, Article 49 ensures the freedom and privacy of communications (with limitations permitted only as per statute) and article 50 the inviolability of the home (with searches of a home, premises or vehicles permitted only as per statute).
The provisions as above can be traced back to the original adoption of the new Constitution in 1997. The Organic Statute for the Kingdom of Poland, which was enacted in 1832 during which time the relevant part of the territory was linked to the Russian Empire, established freedom to publish thought through the press except as essential to ensure appropriate respect to Religion, maintain the inviolability of the Sovereignty power, preserve good morals and guarantee any attack on individual honour (art 13). The first clearly relevant provisions date to the 1921 Polish Constitution which:
- prohibited censorship or licensing of the press and prohibitions on disseminating printed matter including through the mails (with a special statute to deal with abuse of these latter freedoms) (art. 105),
- guaranteed citizens free expression of ideas and convictions within the law (art 104),
- guaranteed the freedom of learning investigations and publishing their results as well as the right of every citizen to teach (art 117),
- established the inviolability of the citizen’s home with entering etc. requiring judicial order under Statute or necessity to execute statutorily authorised administrative orders (art 100), and
- protected the secrecy of correspondence except as per law (art 106).
First-Generation Statutory Law
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Poland did not adopt data protection legislation during the first-generation period.
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Second-Generation Statutory Law
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Poland adopted its first Act on the Protection of Personal Data in 1997 which was broadly based on Directive 95/46. It was subject to a number of amendments which in 2001 and 2004 had relevance to the topics addressed here (see below). Poland joined the EU on 1 May 2004.
Special Expression Derogation
From 2004, the Act set out a derogation for journalistic activity within the meaning of the Polish Press Law 1984 and also for literary and artistic activity which was grounded on a permissive public interest test. More specifically, it exempted such activity from compliance with all substantive data protection provisions except where ‘the freedom of information and dissemination considerably violates the rights and freedoms of the data subject’ (art. 3a(2)).
Broad Expression Derogation
There was no specific provision.
Personal Exemption
The Polish Data Protection Act was not applicable to natural persons involved in the processing exclusively for personal or domestic purpose (art. 3a(1)(1)).
Knowledge Facilitation Framework
The Polish Data Protection Act provided for a knowledge facilitation derogation in Art. 26(2), pursuant to which the processing of data, for purposes other than intended at the time of data collection was allowed, provided that it did not violate the rights and freedoms of the data subject and was performed for the purposes of scientific, didactic, historical or statistical research. No exemption was granted from the proactive direct transparency rule. As regards the indirect collection of data, Art. 32(4) provided that ‘in cases where data are processed for scientific, didactic, historical, statistical or archival purposes, the controller may not notify the data subject about the processing of his/her personal data, if the provision of such information involves disproportionate efforts’. A similar exemption based on disproportionate efforts was granted from the reactive transparency rule i.e. subject access (art. 25(1)(3)). With reference to sensitive data, the Polish Data Protection Act provided a special vires for scientific research so long as any results were not published in a way that allowed the identification of data subjects (art. 27(9)). Finally, no exemption for knowledge facilitation purposes was granted from the legitimating ground and export conditions. Poland exempted all publicly available data from the notification of processing condition (art. 43(10)).
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Parliamentary Debates
The Polish Data Protection Act was passed by the Sejm on 29 August 1997. Basic provisions on data processing for scientific research were set out in the 1997 version of the Data Protection Act. The amendment in 2001 addressed the processing of sensitive data in medical, sociological and criminological research. The amendment in 2004 introduced provisions relating to the derogation for journalistic, literary and artistic purposes.
Special Expression Derogation
The parliamentary debate on the special expression derogation before the adoption of the 1997 Data Protection Act primarily centered around leakages and how journalists could easily obtain access to personal files held by administrative and governmental institutions such as the police.[1] Journalistic freedom of expression and its relationship to the protection of personal data was, however, not discussed in any relevant manner. This is surprising because Ewa Kluesza, the Inspector General for Personal Data Protection, was repeatedly quoted in the media as having called for the introduction of journalistic derogations. In an interview with the Rzeczpospolita in April 2000, she argued for the introduction to the DPA of a press clause. This would make it easier for journalists to access information. While such clauses existed in western European countries, Polish journalists would struggle to access information, for instance on political or union associations.[2]
However, the special expression derogation was eventually only introduced by the 2004 amendment.[3] It was noted that this amendment was introduced upon recommendation of the Commission. The Commission noted that the Polish Data Protection Act did not provide for an equivalent of Art. 9 of the Directive. However, it was pointed out that this exemption was not absolute in character. Rather, it would not apply to constellations in which the exercise of the freedom of expression violated the rights and freedoms of data subjects.[4] However, no substantive debates on the issue were recorded.
Broad Expression
Nothing found.
Personal Exemption
The initial government proposal of the 1997 Data Protection Act provided that that databases with less than 100 records should be excluded from the application of the Act. However, it was criticized that such a provision would allow controllers to circumvent the provisions of the Act by breaking down databases into smaller units. This criticism eventually led to the adoption of a personal exemption in Art. 3(4) of the 1997 Data Protection Act, excluding its application to cases of natural persons involved in the processing of data for personal or domestic purposes.
The Senate, moreover, recommended to delete ‘or domestic’ from Art. 3(4). It justified this recommendation by the need for a narrowed-down personal exemption. However, this recommendation was subsequently rejected.[5]
Knowledge Facilitation Framework
The issue of processing of personal data for scientific purposes was first discussed in the legislative process leading up to the adoption of the Public Statistics Act in 1995 (Dz.U. 1995 nr 88 poz. 439). The debate accordingly mainly focused on the use of personal data for statistical purposes.[6] While the protection of individual data was highlighted during the parliament’s second reading of the Act, a compromise seems to eventually have been reach pursuant to which the statistical authority could not demand individuals for information on their racial background, religion, private life, and philosophical or political convictions. Proposals to include the material situation of an individual in this list were rejected because it was deemed crucial information for micro- and macro-economic analysis.[7]
It was, however, criticized that the Public Statistics Act was debated before the adoption of the Data Protection Act in light of the centrality of data protection questions. The 1997 Data Protection Act eventually introduced the above elaborated derogations in favour of knowledge facilitation. In the above quoted newspaper article from 2000, Ewa Kluesza, the Inspector General for Personal Data Protection, was quoted as criticizing the provisions on scientific research. She noted that certain data could not currently be accessed for scientific research, such as information on criminal conviction and re-offending. Similar problems would also arise in sociological or medical research.[8]
The 2001 amendment later clarified under what conditions sensitive data may be processed for research purposes. However, no substantive debates were recorded in this regard.
Third-Generation Statutory Law
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Poland adopted a third-generation Act on the Protection of Personal Data which inter alia implemented the GDPR on 10 May 2018.
Special Expression Derogation
The Polish Data Protection Act sets out a very wide-ranging unconditional exemption for data processing for editing, preparing, creating of publishing press materials within the meaning of the Press Law 1984 and also for literary and artistic activities. However, the criminal-related data rule and the data export restrictions continue to apply in full (art. 2).
Despite mandating a far-reaching exemption for all other types of special expression, Poland has only granted academic expression an absolute exemption from proactive transparency when data is being collected directly from the data subject themselves and the duty to establish a register of data processing and a minimal derogation just from the obligation to provide a copy of, rather than mere access to, data in response to a data subject access request (art. 2(2)).These special expression provisions do not expressly establish their priority over the knowledge facilitation framework set out in the GDPR (which has not been further implemented in Poland – see below).
Broad Expression Derogation
There was no specific provision adopted.
Personal Exemption – see GDPR, art. 2(2)(c)
Knowledge Facilitation Framework – see also GPDR, art. 5(1)(b) (compatibility), art. 5(1)(e) (time limits) and art. 89(1) (appropriate safeguards)
There is no specific derogation in the Polish Data Protection Act implementing article 89 of the GDPR.
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Parliamentary Debates
Broadcasts are available but no transcripts could be found.[9]
[1] Sejm, Debate (6 March 1992); Sejm, Debate (3 April 1992); Sejm, Debate (5 March 1993).
[3] See https://orka.sejm.gov.pl/Druki4ka.nsf/($vAllByUnid)/2B081C58BD0702DFC1256DC8003EE5AA/-$file/2120.pdf (last accessed 11 April 2021).
[4] See http://orka.sejm.gov.pl/proc4.nsf/opisy/2120.htm (last accessed 11 April 2021).
[5] See Form 2462-A.
[6] Sejm, Debate (15 December 1994).
[7] Sejm, Debate (10 June 1995).
[9] For an overview of the legislative process and the available documents, see http://www.sejm.gov.pl/Sejm8.nsf/PrzebiegProc.xsp?nr=2410 (last accessed 11 April 2021).
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