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Legal opinion

Due to intention of launching the Internet Deceased Database by the company PRAGMATOR and raised questions connected with this matter, I shall answer questions of the legal character in this opinion.
The raised questions are the following:
- Is the processing of the deceased personal data subject to the Law on personal data protection?
- If it is regulated, who is the owner of the deceased personal data?

I.
Answering the first question it should be stated as follows.
The Law of 29 August, 1997 with changes on personal data protection (Journal of Laws No. 133, item 883, final text in Journal of Laws No. 101, item 926) does not expressively determine this question and does not settle this problem.
Taking into account the construction of this Law as the whole as well as analyzing its individual regulations it should be concluded that the protection concerns exclusively personal data of the living persons.
Such conclusions can be drawn on the basis of the construction of rights formulated in this Law, concerning, among others, rights of access to the data, placing disclaimer to the data, the consent of the person the data concerns lying in making a declaration of will the content of which is consent for processing personal data of a person who makes a declaration (art. 7 item 5).
Exclusively a person whom the data concerns, i.e. a living person is entitled for such rights.
If the intention of the legislator was protection of information concerning the deceased, this would undoubtedly be expressly reflected in the regulation of the Law.
Such regulations exists e.g. as regards protection of copyright entitled to other person after death of the author.
Hence from the analysis of art. 1, 6, 7 of the Law on personal data protection it follows - according to my opinion - that the object of protection are only physical identifiable persons while the data on the deceased is not subject to protection. This, however, is not said in the Law expressis verbis.

II.
Consideration of matters raised in the second question requires a comprehensive discussion. The problem concerns personal interests protection of a person which are subject to protection of the civil law (The Civil Code, the Law of 23 April, 1964, Journal of Laws No. 16, item 97 with changes).

According to the wording of art. 23 of the Civil Code:
"The personal interests of a person, in particular (underlined by me) health, freedom, dignity, freedom of conscience, name or nickname, picture, secrecy of correspondence, freedom from search of the place of dwelling, scientific, artistic, inventor's and rationalizer's creative activity are protected by civil law independently of protection provided by other regulations".

It should be stated that personal interests come to being, change and vanish in the result of social relationships development and formation of social consciousness, certain legal and morality systems and establishing of opinions on what in a certain period of development is a value for an individual, a value which should be protected by the law.

Art. 23 of the Civil Code does define personal interests and does not include any closed catalogue of said interests, neither.
Personal interests are certain values of immaterial nature strictly connected with a man.
The Polish law does not define an exhaustive catalogue of protected personal interests. The List has been widened continuously under the influence of judicial decisions and doctrine of law.
It should be expressly stated that that worship of the memory of the close deceased relatives/persons is commonly regarded as a personal interest.
Protection of the honour of the close deceased relative/person commonly accepted as a personal interests does not lie in transferring the right to honour that a deceased is entitled to but it is the own integral right of the closest relatives of the deceased.
It should be pointed out that with a sphere of worship of the memory of the close deceased relative other protected personal interests relating to the sphere of private, family life or the sphere of intimacy can be connected.

The Supreme Court in the decision of 28 February, 2003, file no. V CR 308/02, published in OSNC [the set of the Supreme Court's decisions in civil cases ) 2004/5/82 stated that a family tradition understood as heritage, legacy, identified with achievements and values represented by ancestors is a personal interest subject to legal protection on the basis of art. 23 and 24 of the Civil Code.
The sphere of emotions connected with the worship of memory of the close deceased relative may constitute an object of the legal protection on the basis of art. 23 and 24 of the Civil Code (the Supreme Court's decision of 12 July, 1963, file no. I CR 252/63 - OSNCP 1970/1/18).

Art. 23 of the Civil Code states the general rule that personal interests listed as examples in said article remain under protection of the civil law. This article, however, does not stipulate any sanctions in case of infringement of personal interests.

These sanctions are included in art. 24 of the Civil Code which reads as follows:
"§1. Anyone whose personal interest is threatened by someone else's activities may demand that activity cease, unless the activity is not legal.
In case of an infringement he may also demand that a person who committed the infringement perform the acts necessary to remove its effects, in particular that it make a statement of appropriate content and in appropriate form. In accordance to the principles stipulated in the Code he may also demand a financial compensation or payment of a due amount of money for a specified social purpose.
§2. If, as a result of the infringement upon his personal interest material damage has occurred, the person wronged may demand that it be redressed in accordance with general principles.
§3. The above regulations do not override rights provided by other regulations, in particular by copyright law or law on inventive activity."

Art. 23 and 24 are strictly connected.
The characteristics of the personal interests as subjective rights used for protection of certain personal interests is that they are non-proprietary rights, however their infringement may result in material consequences.

From the analysis of the Supreme Court's decisions it follows that the object of lawsuits in cases concerning protection of personal interests is protection of personal interests such as honour, dignity, good name, health, family life, private, intimate life and worship of the deceased (underlined by me).

A person whose personal interest has been infringed or threatened is entitled to two claims of non-proprietary character:
- cease of activity,
- performance of acts necessary to remove effects of the infringement.

Protection of personal interests is due only against illegal actions.
However, it should be remembered that the premise of illegality of actions is widely defined in the civil law. It is assumed that illegal is any action that is contrary to legal norms as well as legal system and principles of social co-existence.

According to art. 24 § 1 there is a presumption of illegality and due to this the defendant in the lawsuit for protection of personal interests is obliged to prove existence of circumstances justifying his actions, i.e. excluding illegality. In evaluation of the infringement of honour not only subjective emotions of the person demanding legal protection but also objective reaction of society should be taken into account.
Evaluation of a personal interest infringement should be made according to objective facts and not according to subjective feelings of the wronged person.
Treating personal interests exclusively in a category of individual values of the word of emotions and psychological life of a man would lead to unjustified and wrong disregard of views on morality and customs existing in a society.
Objective criteria should be taken into account in evaluating whether in a concrete case a certain personal interest has been infringed.
Obviously, a subjective factor cannot be totally disregarded, nevertheless it would be undue and judicially improper assuming that subjective emotions of a person demanding legal protection are of the decisive meaning.

I would like to point out to a very interesting decision of the Supreme Court of 28 February, 2003, file no. V CR 308/02 in which it dismissed the suitors' cassation of the Court's of Appeal decision stating in the motives of the award that the defender did not infringe legally protected personal interests. The Supreme Court states that undoubtedly the surname of the suitors "H" is their personal interest. This does not mean, however, that said surname cannot be used in presenting historical facts. The surname was mentioned exclusively in a form of information about founders and owners of the brewery. Such a use of a surname cannot be regarded as illegal (underlined by me).
The brewery's founder surname was mentioned exclusively in an affirmative way, exposing their services for the brewery's development and the whole region, therefore the defender did not infringe a personal interest, i.e. worship of the deceased ancestors.

Summing up, it should be stated that not every infringement of a personal interest constitutes infringement of the law. Circumstances excluding illegality of a behaviour, threat or infringement of a personal interest deprive a person affected by the infringement of the protection.
These circumstances, among others, are:
1) acting on the basis of regulations or in exercise of one's own subjective rights,
2) consent of the person entitled (underlined by me),
3) abuse of a subjective right in the understanding of art. 5 of the Civil Code
(art. 5 of the Civil Code says about so-called abuse of the right:
"A right cannot be used in a way which would be in contradiction with the socio-economic purposes of that right or with the principles of social co-existence. Such act or omission on the part of the person entitled is not considered to be in exercise of that right and is not protected."

Item 2) - consent of the person entitled is of interest to us. In the light of the doctrine the consent of the person entitled is qualified as a legal act similar to legal transactions (approximate to a declaration of will), but not a legal transaction.
For its effectiveness the entitled must act reasonably and the consent is of the basic importance to the point of a civil liability for damages.

The consent said above may be expressed by a living person for placing his data in the Internet Deceased Database.
The entitled person (close person/relative) may also express his consent for introducing data of the deceased to the Internet Deceased Database.
A declaration should at the same time be treated as giving consent for conditions presented in the Internet concerning placement of the person's data in the database of the virtual cemetery.


Maria Zuchowicz
Attorney-at-law

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