Opinions on websites can be critical – but they must be reliable and fair!

Websites collecting opinions about “public persons” may present also negative opinions – as long as such opinions are reliable and fair. But they must bear in mind that their evaluation of such criticism (and the credibility of notification in this respect) – if the injured party does not agree with it – will be subject to the assessment of the court. In consequence, this might result in a website being held liable. Let’s start from the beginning.

Personal rights are subject to protection only against unlawful actions. Unlawfulness in turn should be interpreted as a negative assessment of behavior, i.e. such behavior being incompatible with the system of law in general. This means incompatibility with applicable provisions and principles of social co-existence. According to the judgment of the Court of Appeals in Białystok of March 18, 2015 (file no. I ACa 901/14), unlawfulness is excluded, among others, in the case of justified criticism whose boundaries are determined by the social purpose and the aforementioned principles of social co-existence. Quoting the judgment in question: “Those boundaries are not clearly set, because they are also defined by such factors as type of criticism, conditions in which such criticism takes place, value of the purpose which the criticism is to serve as well as community customs and personal characteristics of people. The boundaries of justified criticism, even considering such factors, should not be excessively flexible. Criticism is permissible if done in the public or general interest and if it is reliable and fair.” But what does it mean for the criticism to be based on reliability and fairness?

Most of all, criticism may not be aggressive, rude, humiliating, offensive or unsupported by facts. Moreover, criticism may not be formulated in a malicious and biased manner. It should thus focus solely on the behavior of the person and not on the person. There is also the issue of proportionality – negative opinions going beyond a certain point will not merit protection. The European Court of Human Rights argued that criticism is permissible if conducted with protecting the health and life of the persons in mind. Expressing critical opinions does not have to discredit a specific person, and should be guided by concern for other people [the case of Sosinowska v. Poland (10247/09)].

One gynecologist from southern Poland experienced this first-hand. With the help of the courts, she tried to have a negative comment describing her medical practice deleted from the internet. The comment was posted on the website znanylekarz.pl that constitutes a platform for exchanging patients’ opinions about doctors. The comment in question was posted by one of the dissatisfied patients of the gynecologist. In her comment, the patient very thoroughly and extensively described her visit in the clinic, including her earlier contact with the doctor, service at reception desk and the examination itself. Despite the emotional description of the situation, the tone was very polite: “But that’s nothing – I thought – I’m most probably just feeling sorry for myself. However, yesterday’s visit completely shook me up. The doctor started seeing patients one hour late although she was in the clinic the whole time and was walking along the corridor accompanied by private guests (okay – not all the time, because for half an hour she was in a restaurant with her friends)”. Or: “When I started asking questions, the atmosphere got very unpleasant, and it was only worse later on. I asked the doctor to explain what was wrong with me, for how long I would have to undergo treatment or whether I would have problems getting pregnant… But all of this was shrugged off.”

According to the press, the doctor vehemently objected to those stories. In order to explain the matter, the website got in touch with the unhappy patient who – again – confirmed that the visit looked like it has been described above. As a result, the website refused to remove the comment, and in response the doctor brought an action against the website claiming personal rights infringement and demanding the removal of the comment in question as well as the payment of 3 thousand Polish zlotys to charity.

In the context of the case, the following question arises: is a website liable for the content of entries provided by internet users, and if it is – on what basis? Especially since such websites claim that they fulfill the role of “social controller”…

The liability of a website for comments provided on its forums is covered by Article 14 of Act on the Provision of Services by Electronic Means of July 18, 2002. As a rule, the Act provides for an exclusion of liability of website administrators. This exclusion is, however, not absolute and is subject to significant limitations. Paraphrasing the aforementioned Article 14: a person who does not know about the unlawful nature of comments provided on their website or if after obtaining a credible message or receiving an official notification regarding the unlawful nature of data or related activity such person without undue delay enables access to the comments in question shall not be held liable.

The legislature does not specify what a credible message is, but thelaw indicates it is to be defined on the basis of its subjective elements (it is to be credible for the recipient of the information) as well as objective element (it is to be credible for each reasonable user). On the other hand, according to the judgment by the District Court in Siedlce of November 28, 2013 (I C 1113/12) the provisions “do not indicate who is to be the sender of a credible message, and thus such information could be provided by the injured party himself, but also by a third party completely unrelated to the stored data.” Moreover, the form in which the message is sent is irrelevant.

An official notification is for example a letter from a court, public administration bodies or bodies of local government.

Both ways of notifying the content provider are linked by the fact that a credible message and an official notification have to clearly indicate what information (comments) could be considered unlawful.

In this case, the website failed to delete a critical comment directed at the doctor and despite this it was not held liable. The court found that the criticism was not intended to do harm to the doctor nor was it harassing. The text in dispute contained no swear words or unjustified adjectives. Since the criticism was fair, it could exclude the unlawfulness of infringement of personal rights.

In the provided statement of reasons for judgment, the court rightly stressed that websites of this type do not exist for the sole purpose of giving positive opinions. Moreover, the court determined that a doctor, like a judge, is a public person and for this reason is subject to constant social assessment.

Therefore, the website, having obtained information about the alleged infringement of personal rights by a comment and not deleting it, avoided liability because the court did not find the comment posted by the patient unlawful – and thus the website was under no obligation to delete it.

As a side note, it is worth mentioning the bare fact of performing a public function, while it most certainly allows expressing more critical opinions by the outside world and the media, does not give the right to post slanderous and offensive comments. Two factors will be of utmost importance in the case of assessing – both by the comment’s author and by the website that took no action in response to a credible notification – a possible infringement: the aforementioned reliability and fairness.

The judgment of the District Court in Warsaw in the case in question is not final and binding.