14 November 2022 – Online conversation
On November 14, 2022, the HARD-TALK discussion „The Right to Privacy” was
organized. The event was conducted via remote communication means, on the ClickMeeting
platform. The event was organized as part of the activities of the Central European Professors’
Network 2022 coordinated by the University of Miskolc – Central European Academy. The role of
panelists was played by students and master’s students of Cardinal Stefan Wyszynski University in
Warsaw. The discussion was moderated by – Dr. Bartłomiej Oręziak, from Cardinal Stefan
Wyszynski University in Warsaw and a member of the Central European Professors’ Network 2022.
During the first panel, „The right to privacy as a current problem of the 21st century”
the speakers addressed issues concerning the framing of the right to privacy at the constitutional
level, also analyzing the protection of privacy through civil law, the catalog of crimes violating the
sphere of privacy of citizens or the essence of privacy in employer-employee relations.
In the second panel, entitled „The right to privacy as an element of Polish legislation”
the panelists referred to the essence of the right to be forgotten, and therefore to the assumption of
control over the indefinite processing of information provided by us, the outlook of the Polish
legislator on the privacy of children and the mandatory respect of the sense of individuality before
the age of 18, or the maintenance of medical records during the treatment process.
First in the discussion was the issue of the right to privacy contained in the Constitution –
as the most important legal act in Polish legislation. Article 47 of the Constitution guarantees the
legal protection of private life, family life, honor and good name, and safeguards the issues of
deciding one’s personal life. Thus, every person has the right to his or her own individual right to
privacy, which protects the private sphere and empowers the individual to decide independently
about the disclosure of information. In her speech, the author stressed that the Constitution upholds
the right to privacy, but there is no doubt that involvement in public activities means a limitation of
this right for the individual, and especially with regard to information disclosed during or in
connection with such activities. In such a case, the individual’s right to privacy must give way to
the right to information of society as a whole, which is essential for the ability of the general public
to control the actions of collegial public authorities.
Then, our discussion moved to civil law and the issue of protection of the right to privacy
by civil law. The author pointed out that the Civil Code stipulates that human personal property
such as health, freedom, honor and others in Article 23 of the Civil Code are under the protection
of civil law regardless of the protection provided by other laws. The use of the word as in particular
means that the legislator does not protect only the mentioned spheres of life, but also such spheres
as privacy or good name. Despite the fact that the right to privacy is not expressly indicated in
Article 23 of the Civil Code, it is, however, undeniable that it is one of the basic extra-legal values
that requires respect. Protection of this good is provided for in basic international conventions, as
well as in the Constitution of the Republic of Poland. According to the Civil Code, one whose
personal good is threatened by someone else’s action may demand that the action be stopped, unless it is not unlawful.
The next issue raised in the discussion was what crimes in Polish law involve a threat to the
legal good of the right to privacy. The author of the speech cited Article 190a of the Criminal Code,
in which the legislator decided to protect the right to privacy by criminalizing the crime of
harassment and use of an image, as well as the penalties that threaten violations of this provision.
In order not to rely only on the law, the author cited official police statistics, in which it should be
noted that in 2012 there were 2,690 cases of committing the crime of Article 190a. In 2020, on the
other hand, the number was already 5,878, so a significant increase can be seen.
The first question posed to Ms. Joanna focused on the right to privacy in the employment
relationship. In this connection, the speaker discussed issues arising from the labor law. Namely, it
was pointed out, on the one hand, the right of the employer to kind of control the employee during
the performance of work, but on the other hand, the right to privacy of the employee was
emphasized, which is increasingly gaining importance in the Polish labor relationship. The author
pointed out that the provisions of the right to privacy in labor relations at the same time set the limits
to which control can reach, but, in a way, also indicate that in some cases the controlling and
managerial powers of the employer can justify interference in the privacy of the employee. As de
lege ferenda conclusions, the author of the speech pointed to the introduction of specific sanctions
in the provisions of the Labor Code for violations of the personal rights of the employee. At present,
an employee can terminate the employment relationship on the basis of Article 55 § 1 of the Labor
Code.
We moved from the ground of labor law to the ground of administrative law, where the
question of what information is subject to release as public information was clarified. To clarify
what public information itself is, the author turned to its description in the Constitution of the
Republic of Poland, which states that a citizen has the right to obtain information about the activities
of public authorities and persons performing public functions. However, this does not have to be
information produced by these entities, but also information in their possession produced in
connection with the performance of public tasks or the management of public property by other
persons and local government units. The qualification of a given piece of information as a subject
of release is determined by its content and nature. If the information has the status of public
information, it must be made available to anyone who requests it.
The second panel began with an extremely interesting and interesting topic, which was the
question of the „right to be forgotten” in Polish law. In theory, this right means that the data of
people who want to be „forgotten” would have to be completely removed from the administrator’s
system. Moreover, if the data was published, for example, on the Internet, the administrator would
have to make sure that all links to that information were also deleted, and copies and replicas
removed, even if they are in the possession of other entities processing the data on behalf of the
administrator. Deactivating or hiding a person’s social media profile is also not enough. The data
must be deleted. This right derives mainly from the provisions of the RODO. This regulation makes
data controllers responsible for deleting content held by third parties as a form of ensuring that data
subjects realize their rights. The author stressed that due to the potential number of requests,
ensuring a prompt and effective response to a data subject’s request can cause the most problems.
In addition, the law may be seen by some as interfering to some extent with freedom of speech and
as a tool to escape the past, which can be used by various individuals.
Another issue raised in the second panel discussion was the legal situation of children in the
context of the right to privacy in the Polish legal system. Beginning her speech, the author rightly
emphasized that the task of the state is to uphold the rights and duties of citizens, and this duty is
relatively more important when the subjects are children. As a key provision in this regard, the
author pointed to Article 72 of the Constitution of the Republic of Poland, which, among other
things, obliges public authorities to ensure the protection of children’s rights, and recognizes the
right of everyone to demand the protection of children from particularly drastic violations.
However, the document on an international scale that completely regulates the legal situation of
children is the Convention on the Rights of the Child, and – from the point of view of the right to
privacy – especially Article 16, which refers, among other things, to the illegality of such behavior
as humiliation, ridicule or interference in personal spheres. It was emphasized that a child is a
completely separate individual, so regulations dedicated to children should take care to duly respect
their sense of separateness.
Another issue raised in the discussion by Ms. Klaudia was how the right to privacy was
guaranteed in the Polish criminal process. To this end, the author introduced two guiding principles
of the criminal trial – the principle of material truth and the principle of openness of the trial.
Characterizing both of these principles, the author pointed out that they are not absolute and can be
limited precisely because of the right to privacy. The right to privacy in Polish criminal proceedings
can be guaranteed, for example, by limiting the openness of the trial or the participation of an
incognito witness in the proceedings. On the other hand, material truth can be limited by evidentiary
prohibitions that protect secrets, including professional secrets or secrets of classified information.
In conclusion, the author stressed that the issue of evidentiary prohibitions and their correlation with
the right to privacy is broader and deserves more in-depth discussion in the doctrine.
The next important issue raised during the discussion was the protection of the right to
privacy and the resulting restrictions on the maintenance of medical records by health care
providers. The author of the speech pointed out that a patient who chooses to receive health services
cannot effectively object to the keeping of medical records. This obligation imposed by the law
interferes in a significant way with the patient’s privacy – this is dictated by such considerations as,
for example, the need to protect public health or control over the providers of services. As an
important right of the patient under the right to privacy, the author pointed out access to medical
records regarding the patient’s health status and the health services provided to the patient, and the
possibility of awarding damages, in court proceedings, in a culpable violation of the patient’s rights.
The last issue raised during the discussion concerned the construction of the attribution of
legally protected secrets to certain information. The author stressed that legally protected secrets
reach the limits of constitutional rights and freedoms, such as freedom of information and the right
to public information as defined in the Polish Constitution.
Therefore, in order to qualify certain information as a secret subject to secure protection,
there must be a legal act, and the way secrets are regulated should meet the constitutional
requirements set forth in Articles 31 and 61 of the Polish Constitution. Secrets can only be
established if, in a democratic state, it is necessary to do so in order to protect certain goods. The
legislator can do this by clearly indicating the existence of a secret and specifying its name, such as
the attorney-client privilege. At the end of the speech, it was emphasized that in the case of some
secrets, when defining the scope of protected information, the legislator does not introduce a
normative determination of the name of the secret, but only uses it in the law, thus creating a secret.
This concluded the ongoing discussion, and the entire HardTalk event was summarized by
the presenter – Dr. Bartlomiej Oręziak, who, after presenting the conclusions of the discussion,
thanked them for the discussion and concluded the event.
The information about the event and the video of the HardTalk event recording attracted a
lot of interest from the audience, with 12,256 views on IWS’ Facebook profile and 2,782 views on
YouTube.
