Infringement of a company’s good name online – black PR and legal liability

Infringement of a company’s good name online as an act of unfair competition

What is an Act of Unfair Competition?

Pursuant to Article 3(1) of the Polish Act of 16 April 1993 on Combating Unfair Competition, an act of unfair competition is conduct contrary to the law or good practice if it threatens or infringes the interests of another entrepreneur or a customer.

Furthermore, pursuant to Article 14(1) of the Act, an act of unfair competition consists in disseminating false or misleading information about one’s own or another entrepreneur or enterprise in order to obtain a benefit or cause damage.

The Act indicates that this may concern, in particular, false or misleading information about:

• persons managing the enterprise,
• goods manufactured or services provided,
• prices charged,
• the economic or legal situation of the entrepreneur or enterprise.

The catalogue of acts of unfair competition set out in the Act is open-ended. This means that it does not constitute an exhaustive list of all possible infringements, but merely identifies examples of conduct that may be classified as acts of unfair competition.

Who may be a recipient of false or misleading information?

Legal scholars take the view that the provision has a broad scope of application, stating that “it covers (…) all entities that may be misled by false information. Such information may affect the entrepreneur’s customers and contractors, as well as other entrepreneurs, including the injured party’s competitors” (J. Kępiński, in: J. Szwaja [ed.], Ustawa o zwalczaniu nieuczciwej konkurencji. Komentarz [Act on Combating Unfair Competition: Commentary], 1st ed., 2024).

Consequently, the group of potential recipients of such information is broad and is not limited exclusively to the entrepreneur’s consumers or customers.

It may also include current and prospective contractors, suppliers, subcontractors, investors, financing institutions, employees, business partners, competitors and other entities participating in commercial dealings.

What matters is not the formal status of the recipient, but whether the information communicated may mislead them and influence their market conduct, thereby providing a benefit to the perpetrator or causing damage to the entrepreneur concerned.

Must the conduct cause damage to be considered an act of unfair competition?

No. The case law accepts that causing damage or obtaining a benefit need not be the direct purpose of the perpetrator’s conduct. This means that Article 14(1) of the Act may also cover situations in which actions described as “black PR” are intended to damage a competitor’s reputation, even if the intended result is ultimately not achieved.

Moreover, in addition to acts committed with direct intent, the scope of the provision may also cover situations in which the perpetrator accepted the consequences of their conduct, while causing damage or obtaining a benefit was not their direct purpose, because the conduct was in fact directed at achieving a different result. This position was presented, among others, in the judgment of the Court of Appeal in Warsaw of 6 July 2018, case no. VII AGa 341/18, in which the Court observed that: “within (…) the scope of application of Article 14 of the Act on Combating Unfair Competition, in addition to acts committed with direct intent, there are situations in which the perpetrator merely accepted the consequences of their conduct, while causing damage or obtaining a benefit was not their direct purpose.”

Therefore, for particular conduct to be classified as an act of unfair competition under Article 14(1) of the Act, it is not necessary to prove that the perpetrator’s direct and exclusive purpose was to cause damage to another entrepreneur or to obtain a benefit for themselves or a third party.

It may be sufficient that the perpetrator foresaw the possibility of such consequences and at least accepted them, even where the conduct was directly aimed at achieving a different result, for example, discrediting a competitor, weakening its reputation or undermining trust in its business activities.

Examples of Black PR and Unfair Competition

Examples of such actions may include:

• disseminating false information concerning another entrepreneur, unlawfully using its trade mark or website address, advertising with another party’s trade mark, and misleading potential customers and contractors by suggesting that an entrepreneur offers original products of a particular company and is its official distributor, although it does not in fact have that status – judgment of the Court of Appeal in Warsaw of 20 December 2018, case no. VII AGa 571/18,
• disseminating information about the entrepreneur’s allegedly poor situation in factual, legal or financial terms – judgment of the Court of Appeal in Kraków of 15 November 2012, case no. I ACa 1024/12,
• disseminating information suggesting that a company uses unethical methods in its business activities, engages in unfair competition, disruptive conduct, price manipulation or customer fraud – judgment of the Court of Appeal in Warsaw of 10 July 2019, case no. V ACa 539/18.

Can black PR lead to criminal or petty-offence liability?

Yes, although such liability does not arise in relation to every act of unfair competition.

The Act on Combating Unfair Competition provides for liability for disseminating false or misleading information about an enterprise with the intention of harming an entrepreneur. Such conduct is punishable by detention or a fine under Article 26(1) of the Act.

The same penalty applies to a person who, for the purpose of obtaining a financial or personal benefit for themselves, their enterprise or third parties, disseminates false or misleading information about their own enterprise or entrepreneur. Such information may concern, in particular:

• persons managing the enterprise,
• goods manufactured,
• services provided,
• prices charged,
• the economic or legal situation of the entrepreneur or enterprise.

Consequently, the dissemination of false information as part of actions described as “black PR” may result not only in civil liability for an act of unfair competition, but also in liability for a petty offence.

The application of Article 26 of the Act nevertheless requires proof of the perpetrator’s specific purpose, namely the intention to harm the entrepreneur or obtain a benefit for themselves, their own enterprise or a third party.

The perpetrator is not prosecuted ex officio, but at the request of the injured party.

This means that the injured party should notify the competent authorities of the petty offence and expressly request the prosecution of the perpetrator. Without such a request, proceedings concerning the act specified in Article 26 of the Act should not be instituted.

Infringement of an entrepreneur’s good name as an infringement of personal rights

Infringement of an entrepreneur’s good name on the Internet is also connected with the protection of personal rights.

The case law accepts that infringement of an entrepreneur’s personal right in the form of its good name or reputation most commonly consists in disseminating information containing allegations against the entrepreneur or a negative assessment of the activities of a legal person.

It should be remembered that an entrepreneur’s personal rights may also be infringed by consumers, for example by publishing criticism that is inconsistent with the facts, using offensive terms or making false allegations concerning the entrepreneur itself, its products, services or employees.

The possibility that a consumer’s statement may infringe an entrepreneur’s personal rights was noted by the Supreme Court, among others, in its judgment of 23 May 2005, case no. III CK 622/04, stating that “the good name of a legal person is infringed by statements which, viewed objectively, attribute improper conduct to the legal person that may cause it to lose the trust necessary for the proper performance of its tasks.“

We discuss the prerequisites for liability, requests for content removal, apologies and monetary claims in greater detail in our article on infringement of personal rights.

Defamation of a company online – liability for defamation

Pursuant to Article 212 § 1 of the Polish Criminal Code, a person who accuses another person, a group of persons, an institution, a legal person or an organisational unit without legal personality of conduct or characteristics that may humiliate it in the eyes of the public or expose it to a loss of trust required for a given position, profession or type of activity is liable to a fine or restriction of liberty.

Where the perpetrator commits such an act through mass media, the potential criminal liability is more severe. Article 212 § 2 of the Polish Criminal Code provides in such a case for a fine, restriction of liberty or imprisonment for up to one year.

The Internet may constitute a means of mass communication within the meaning of this provision.

Practical example from Polish case law:

“The Internet is a means of mass communication referred to in Articles 212 § 2 and 216 § 2 of the Criminal Code, through which a perpetrator may commit both defamation and insult” (decision of the Supreme Court of 7 May 2008, case no. III KK 234/07).

Consequently, the provisions of the Polish Criminal Code provide for imprisonment of up to one year where an entrepreneur is defamed through the Internet.

The court has discretion as to the type and severity of the penalty imposed in a particular case, but that discretion is not unlimited. The court should take into account, among other matters:

• the perpetrator’s motivation,
• the manner of their conduct,
• the nature and extent of the adverse consequences of the offence,
• the perpetrator’s personal characteristics and circumstances,
• the perpetrator’s way of life before committing the offence,
• their conduct after committing the offence,
• steps taken to remedy the damage or compensate the injured party.

The offence specified in Article 212 § 2 of the Polish Criminal Code, consisting in posting defamatory content on the Internet, is committed at the time the entry is posted, rather than when it is subsequently removed. This position was presented in the decision of the Supreme Court of 29 June 2010, case no. I KZP 7/10.

Defamation may take many different forms. As a rule, however, it must concern conduct or characteristics that may humiliate a particular person or entity in the eyes of the public or expose them to a loss of trust required for a given profession, position or type of activity.

Examples of defamation of an entrepreneur in case law

In one case, the court examined the posting of comments and posts on a social networking site and the communication of information to other persons according to which the injured party had allegedly engaged in criminal conduct, used fraudulent practices and suffered from a mental illness. The published comments included statements suggesting that the injured party was a “scammer” and a “fraudster“. The court found that these allegations could humiliate her in the eyes of the public and expose her to a loss of the trust required to operate a dog-breeding business (judgment of the District Court for Poznań-Nowe Miasto and Wilda in Poznań of 25 June 2018, 6th Criminal Division, case no. VI K 13/17).

In another case, the court assessed an article in which a member of a company’s management board was accused of mismanagement, squandering the company’s assets, organising expensive foreign trips and misappropriating assets. These allegations could expose the injured party to a loss of the trust required to serve on the management bodies of commercial companies and participate in public life (judgment of the Regional Court in Warsaw, 10th Criminal Appeals Division of 4 October 2013, case no. X Ka 626/13).

Infringement of a company’s good name online – identifying the perpetrator

As a rule, in order to pursue rights before a court, it is necessary to establish the details of the person infringing the entrepreneur’s good name online. Although this may initially appear complicated or even impossible, our experience indicates that in many cases it is possible to identify the perpetrator.

The first step is to identify the administrator of the website or portal on which the entry was published and then request that the administrator preserve and disclose the data it holds concerning the author of the publication.

One such item of information may be the IP address of the device from which the entry was posted. An IP address may assist in identifying the connection or device from which particular content was published. However, an IP address alone does not always make it possible to identify conclusively the specific person who actually posted the entry.

Obtaining technical data may make it possible to take further steps to identify the author of the publication and subsequently initiate appropriate legal action.

The position expressed in previous case law has been that the anonymity of statements made online should not shield persons who infringe the rights of others from liability for their words.

Practical example from Polish case law:

“It should be emphasised that so-called “online excesses” increasingly infringe the personal rights of others. Too many supposedly anonymous persons express their views too easily on online forums, causing harm to others. The Court takes the view that the right to free, anonymous expression cannot protect persons who infringe the rights of others from liability for their words” (judgment of the Regional Administrative Court in Warsaw of 3 February 2010, case no. II SA/Wa 1598/09).

Decisions concerning the disclosure of personal data have also indicated that an intention to bring court proceedings against the author of an entry may justify an interest in obtaining the data necessary to pursue claims.

An example is the decision of the President of the Polish Personal Data Protection Office in case ZKE.440.51.2019, concerning a request for disclosure of an IP address and, where possible, other data relating to a user who had posted an entry allegedly infringing personal rights.

Data is not, however, disclosed automatically. Each request should be properly substantiated and assessed in accordance with the current personal data protection legislation.