keywords

1 Introduction to the problem

The subject of this paper is conducting investigatory activities by private individuals and collecting information that could become a piece of evidence. Such individuals may be e.g. victims, aggrieved persons, network administrators, persons responsible for IT security in companies. Their reaction to incidents is unavoidable and, frequently, it is their actions that allow us to detect offenders and bring them to justice. The incidents of abuse may involve, e.g. hacking into servers, unfair competition acts or abuse done by employees.

Private gathering of evidence becomes more and more common and – as one may say – “trendy”. Expansion of modern technologies certainly contribute to it, as well as activities of detective agencies and availability of technical means that enable such gathering of information. One may also add the lack of faith in effectiveness of the law enforcement and a preference to deal with issues without unnecessary publicity, which could damage the company’s reputation. Moreover, in the last few years we have observed the growth of the cyber forensics in Poland.

It is however a legal “mine field”, since gathering of evidence by private individuals has not been in fact regulated by the Polish legislators. This means that the person responding to the incident can easily cross that thin line between what’s legal and what’s not, bringing upon themselves civil or criminal liability.

2 Gathering evidence by private individuals in the light of the Polish law

The basic question to be asked first is whether the Polish law allows private individuals to gather information constituting a body of evidence. Responding to that question, one must point out, that the Polish code of criminal procedure (CCP) contains no provisions on the subject matter. This resulted in disputes between law professors. Legislators, however, refrained from any action.

We should assume that the provisions of law do not generally prohibit private individuals to gather information constituting a body of evidence, provided that such gathering does not contravene provisions of the criminal code, civil code and other acts.

3 Available methods

A method to be used more and more frequently nowadays is certainly the wiretapping. Well-known corruption cases, such as the Gudzowaty tapes, are the best example of it. Thus, a question arises, whether the wiretapping is in fact legal. First, it should be noted that violation of confidentiality of correspondence is protected by both the Constitution and the criminal code. So, there must be a legal exception to this prohibition, which would cancel the illegality of such action. Such exceptions were defined in the code of criminal procedure and in other acts of parliament for the so called legal interception. There is no single regulation pertaining to private persons.

We can resort to several court decisions relevant to the subject matter. In the judgment of 10.05.2002 1 the Supreme Court stated, that a magnetic tape containing a telephone call between the defendant and the victim, recorded by the latter, may constitute a body of evidence. According to the Supreme Court there are no legal impediments, and failure to accept such evidence would be an unjustified reduction of the body of evidence. Neither the provisions of the CCP apply since such interception was not conducted by public authorities. While agreeing with those theses one must point out, that in this case it is rather difficult to speak of the wiretapping, since the recording was made by one of the parties involved in the conversation. And it is assumed that the wiretapping involves actions of a third party. We must admit however, that in the foreign legislations this issue is approached in various ways.

On the other hand, in the judgement of 13.11.20022 relating to a typical direct surveillance (installed in the room), the Supreme Court pointed out that “the provisions, which regulate lawful interception, commonly recognized as removing the illegality of interception, should be treated as a vital guideline, when evaluating the annulment of illegality in other interception cases, since they indicate in which situations the legislator allows exclusion of confidentiality of communication.” The Court indicated that annulment of the interception’s illegality may occur, when the intercepting person acts in defence of the justified legal interest. However, the catalogue of crimes listed in the CCP and in the Police Act 1990 should be treated as indication as to whether such annulment of illegality actually occurred. Thus,

the Supreme Court applied the principle of proportionality, which enforced the balance of the protected rights and the sacrificed rights. Substantial doubts may be raised by the decision of the Supreme Court of 14.11.20063 , in which the Court expresses a view, that private gathering of evidence takes place, when a law enforcement officer delivers the wiretap equipment and provides operational instruction, and without whose cooperation the whole wiretapping operation would not be possible. This thesis seems to contravene the line of judicial decisions of the European Court of Human Rights and allows one to get around the provisions on the judicial control of the surveillance operations by taking advantage of people outside of the Police.

It should be underlined, that persons rendering detective services do not possess special authorization for interception of communications. By virtue of art. 7 of the law dated 6 July 2001 on detective services4 , a detective – when rendering services mentioned in art. 2 par. 1 of this law – may not use the technical means and methods, as well as conduct operational and intelligence activities reserved for authorized bodies, pursuant to separate regulations. Violation of this prohibition is subject to up to 3 years’ imprisonment (art. 45 of the law). In practice however, this article is rarely observed.

Another frequently used method of gathering evidence is the real-time analysis of traffic data. It must be assumed, that the entity conducting such analysis (e.g. an employer) should prove, that it has a justified interest in such actions, and the receiver & sender of information were informed about application or a possibility of application of such procedure5 . It’s worth to point out at this time, that in one of the recent judgements the European Court of Human Rights decided, that employers do not have the right to analyze in detail the calls made by their employees, even considering the fact, that they are authorized to receive the billing data6 . Besides acquiring data in real-time, there is also an issue of accessing the stored data by searching through the equipment or media in an employee’s possession. Also in this case there is a need to create clear procedures allowing data browsing in a manner, that would be justified as to its purpose and be in accordance with the principle of proportionality. Regardless of the above, if the data captured by the system constitutes the private life material (e.g. pictures, private correspondence) their browsing should not take place.

4 Evidential value of the collected information

The Polish law is very liberal as to the admissibility and evaluation of evidence. Also, the fruits of the poisonous tree theory does not exist in Poland, although its implementation, at least partial, would be welcomed. At this time however, the evidence obtained by private individuals with violation of the current law, even through criminal acts, is accepted by courts.

5 Criminal and civil liability for actions that contravene the law

In accordance with art. 23 of the Civil Code, the man’ personals rights, especially health, freedom, honour, freedom of conscience, name or pseudonym, image, confidentiality of correspondence, immunity of residence, scientific, artistic, inventive and improvement work, remain under protection of the civil law, regardless of the protection granted by other regulations. Whereas art. 24 § 1 of the civil code provides, that he, whose personal rights are threatened by other person’s action, may demand ceasing this action, unless it is legal. In case of the violation, he can also demand that the person, who had committed the violation, performed the activities necessary to remove its effects, especially that this person made a statement of appropriate content and form. By virtue of the rules defined in the code, he can also demand a pecuniary compensation or payment of appropriate sum of money for indicated social purposes. On the other hand, § 2 of this article states, that if the pecuniary damage was done as the result of violation of personals rights, the aggrieved party may demand indemnification on general terms.

For the sake of supplementation it should be added, that according to the Supreme Court “illegal activity is the activity that contravenes legal standards or rules of social co-existence, and the illegality is cancelled by actions complying with the provisions of law, conforming to the rules of social co-existence, actions by consent of the aggrieved party and in execution of the legal rights.”7

Naturally, except for the civil liability, the criminal liability may occur as well. We can quote here especially art. 267 of the penal code: § 1. Whoever, without being authorised to do so, acquires information not intended for him, by opening a sealed letter, or connecting to a wire that transmits information or by breaching electronic, magnetic or other special protection for that information, shall be subject to a fine, the penalty of restriction of liberty or the penalty of deprivation of liberty for up to 2 years. § 2. The same penalty applies to a person, who – in order to acquire information, which is not intended for him – installs or uses a tapping device for audio or vision or any other special device. § 3. The same penalty applies to a person, who discloses information acquired in the manner described in § 1 or 2 to other person. § 4. Persecution of the crime defined in § 1-3 proceeds at the request of the aggrieved. This provision prohibits both direct surveillance (e.g. analysis of screen radiation, hidden monitoring of the screen’s activity) and the indirect surveillance (installing devices to control transmission of information in the networks). Moreover, we should put emphasis on the fact, that in order for the criminal liability to occur, one condition has to be met – intercepted information must not be intended for a person intercepting it or that person may not be authorized to acquire it. This provides an opportunity for various interpretations, especially in the context of employers.

6 Conclusion

The issue presented here shall certainly continue to grow in significance. The life brings new problems all the time. Problems, which legal experts will have to deal with. As the chance may have, some famous and controversial case may contribute to at least partial regulation of the issue of gathering evidence by private individuals, especially employers. However, the chances for that are slim at best. What remains for now is interpretation of the current law, taking into consideration especially the principle of proportionality, and analysis of judicial decisions.