How does the Civil Code regulate the right to privacy and recording?
Recording can be interpreted differently. We are talking about recording telephone calls (sound recording) and image recording (monitoring). The recordings may constitute evidence in a court case or serve security purposes (monitoring). It is important to keep an appropriate line between the possibility of ensuring security through the use of "monitoring" measures and the right to privacy of the person being recorded.
The right to privacy - regulations from the Civil Code
Pursuant to Art. 23 of the Act of April 23, 1964, the Civil Code (Journal of Laws 2017.459, i.e. of March 2017), hereinafter: the Civil Code, human personal rights, such as, in particular, health, freedom, honor, freedom of conscience, name or nickname, image, secret correspondence, inviolability of the home, scientific, artistic, inventive and rationalizing creativity remain under the protection of civil law, regardless of the protection provided for in other provisions.
Thus, the Civil Code regulates the obligation to respect and protect the right to privacy of every human being. Each infringement or threat to this right should be initially classified as illegal. A person whose personal rights have been violated is entitled to the protection provided for in the Civil Code.
Art. 24. [Protection of personal rights]
§ 1. Anyone whose personal interest is threatened by someone else's action may demand that this action be discontinued, unless it is not unlawful. In the event of an infringement, he may also require the person who committed the infringement to perform the actions necessary to remove its effects, in particular to submit a declaration of appropriate content and in an appropriate form. On the principles provided for in the code, he may also demand monetary compensation or payment of an appropriate sum of money for a given social purpose.
§ 2. If, as a result of the infringement of personal rights, property damage has been caused, the aggrieved party may demand that it be remedied on general principles.
§ 3. The above provisions do not prejudice the rights provided for in other provisions, in particular in copyright and inventive law.
In a possible trial for the right to privacy of the recorded person, it will be on the defendant to prove that his action was not unlawful by proving that one of the circumstances excluding the unlawfulness of the action occurred. The claimant, on the other hand, should prove the existence of a personal right and the threat or violation of that right.
According to the judgment of the District Court in Słupsk of 19 January 2016, I C 331/15, unlawfulness constitutes a violation of the states of affairs protected by law and means exceeding the stipulated in Art. 24 § 1 of the Civil Code, the limit of the threat to personal welfare. In the jurisprudence, any action infringing a personal right is considered unlawful, provided that no specific circumstances justifying it occur. The circumstances excluding the unlawfulness of the infringement of personal rights usually include:
operation within the legal order, i.e. action permitted by applicable law,
exercising a subjective right,
consent of the aggrieved party and
acting to protect legitimate interest.
The above judgment of the District Court in Słupsk was issued on the basis of a case belonging to the category of neighbor cases. A neighbor installed cameras on the building shared by the parties to the dispute. The neighbor (defendant) did not inform the plaintiff about the intention to install these cameras and did not obtain his consent. Thus, he violated the right to privacy.
The court found that the defendant neighbor had unlawfully infringed the plaintiff's personal rights, pursuant to Art. 24 of the Civil Code in connection with Art. 23 of the Civil Code ordered the defendant to remove three of the four cameras.
Undoubtedly, the observation and recording of private life events may cause embarrassment and some discomfort. Awareness of constant observation restricts human freedom and may cause concern, including the right to privacy.
Monitoring is mainly used for reasons of safety of the person or other legal entity that decided to install it. Its main purpose is to secure property or protect human life and health. However, it is necessary to use common sense when installing this type of devices, primarily due to the right to privacy of the people being recorded.
The use of recordings in court proceedings and the right to privacy
Pursuant to Art. 308 of the Act of November 17, 1964, Code of Civil Procedure (Journal of Laws 2018.155, i.e. of 2018.01.19), hereinafter: the Code of Civil Procedure, evidence from documents other than those listed in Art. 2431, in particular, containing a recording of image, sound or image and sound, the Court shall carry out, using the appropriate provisions on the evidence of inspection and documentary evidence. Therefore, the Code of Civil Procedure allows for the possibility of taking evidence from audio recording (recordings) and image recording (e.g. monitoring), however, courts have different approaches to the method of obtaining such recordings, i.e. whether the recorded persons consented to the recording, or whether there was no such consent. and whether it has compromised their right to privacy.
According to the first view expressed in the judgment of the Court of Appeal in Białystok of 31 December 2012, I ACa 504/11, a person who himself - being a participant in the conversation - records the statements of the people involved in this incident cannot be accused of contradicting his actions. with the law, and at best with good manners.
As the court further states, the recent legal literature presents and widely substantiated the view that the principle of inadmissibility of unlawful evidence, recognized under civil procedural law, is not of a general nature. The above rule does not apply to evidence in the form of recordings made personally by the participants of the events, which are then presented to the court by those persons acting as parties, i.e. the two parties to the trial.
It was also emphasized that the persons making such recordings, unlike third parties, due to the fact that they are participants in the communication process, do not violate the provisions protecting the confidentiality of communication, expressed in Art. 49 of the Constitution, while in the case of other absolute rights (personal rights, right to privacy), freedoms and rights under Art. 49, 51 of the Constitution, Art. 8 of the ECHR, the lack of unlawfulness of infringement of these goods results from the exercise of the right to a fair trial. Both the right to a fair trial under Art. 45 of the Constitution, as well as the provisions of the act regulating civil court proceedings, allow for the infringement of the aforementioned goods due to the subject matter of the proceedings, which was presented by the party to the court and the implementation of the protection of its subjective rights in court proceedings.
In line with the view expressed above, evidence from recordings made by the parties to the proceedings is admissible, even if it constitutes an infringement of the other party's privacy, as it is an expression of the exercise of the right to a fair trial enshrined in the Constitution.
A different view was presented by the Court of Appeal in Poznań in its judgment of 10 January 2008, I ACa 1057/07, according to which a deceptive recording of a private conversation violates the constitutional principle of freedom and protection of communication (Article 49 of the Constitution of the Republic of Poland) and the right to privacy . Evidence obtained contrary to the law should not, as a rule, be admitted in civil proceedings. A similar position was expressed earlier by the Supreme Court in the judgment of 13 November 2002, I CKN 1150/00: the constitutionally guaranteed right to communicate covers various forms of communication between people. It also contains the secret of the conversation. The good violated by wiretapping is therefore a constitutional value.
As can be seen from the above, the recording raises serious ethical doubts and constitutes a violation of morals. Nevertheless, along with the development of technology, more and more applications for evidence from recordings, whether in the form of audio or video recording, may flow to the court during the trial. The recording may prove helpful, because the court has the opportunity to thoroughly analyze the actions taken by the parties, however, such a recording may place the recording party in a privileged position, because the recorded party was not aware of being recorded, and under the influence of emotions, various sentences may be spoken (and not necessarily with therefore remembered by the side being recorded). Currently, courts usually dismiss motions of evidence for taking evidence from recordings as contrary to the values expressed in the Polish Constitution.
Monitoring in the workplace and the right to privacy
The changes planned in the Labor Code related to monitoring are also worth noting. According to the draft act of 12 September 2017 on the provisions introducing the act on the protection of personal data to the Labor Code, it is planned to introduce Art. 224:
§ 1. In order to ensure the safety of employees or protect property or keep secret information, the disclosure of which could expose the employer to damage, the employer decides to introduce special supervision over the workplace or the area around the workplace in the form of technical measures enabling image registration (monitoring), if deemed necessary. Monitoring cannot be a means of controlling the performance of work by an employee.
§ 2. Monitoring does not cover rooms that are not intended for work, in particular sanitary rooms, cloakrooms, canteens or smoking rooms.
§ 3. Personal data obtained as a result of the monitoring application are processed by the employer only for the purposes for which they were collected and kept for the period necessary to achieve these purposes.
§ 4. The employer informs employees about the introduction of monitoring in the manner adopted for a given employer no later than 14 days before starting the monitoring. Before allowing the employee to work, the employer informs him about the use of monitoring.
This provision will enable the employer to install monitoring, in fact it will legalize the employer's activities in this area, which is to ensure the safety of employees, protect property and preserve information considered by the employer to be a business secret. The employer will be able to independently decide on the installation of image recording devices and the places where it will be installed.
However, the above provision (§ 2) outlines the boundaries, ie areas where cameras cannot be mounted. Monitoring will not be allowed to cover rooms that are not intended for work, in particular sanitary rooms, changing rooms, canteens and smoking rooms. As a rule, employers did not install image recording devices in such places due to the privacy protection guaranteed by the Constitution and the right to respect the employee's personal rights, but the legislator should be commended for the willingness to regulate this issue by law.
Currently, the Act of 12 September 2017 on the provisions introducing the Act on the Protection of Personal Data is at the stage of reviewing the draft by the Committee for European Affairs, so it is difficult to indicate the expected date of entry into force of the planned changes and their actual scope.