ECHR judgment on surveillance in Poland

The European Court of Human Rights (‘ECHR’) ruled on 28 May 2024 in the case of Pietrzak, Bychawska-Siniarska and Others v. Poland (applications nos. 72038/17 and 25237/18). The complaint of the individuals, representing non-governmental organisations and Pietrzak's counsel, concerned Polish legislation allowing the services to collect information about citizens under the excuse of combating crime and threats to public safety.

The ECHR, in yesterday's ruling delivered to the full Chamber, indicated that there had been a breach of Article 8 of the Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR), which provides for the right to respect for private life, in relation to the operational-control regime, the retention and use of telecommunications data for service purposes and covert surveillance carried out under the provisions of the Anti-Terrorism Act.

Significantly, the ECHR considered that it was possible to examine the impugned provisions in abstracto, without the applicants having to prove that surveillance had actually taken place, and that the very existence of the provisions complained of could constitute an unjustified interference with a right under Article 8 of the Convention.

The judgments of the European Court of Human Rights, in particular concerning the interpretation of Article 8 ECHR, are also an important indication for the activities of the President of the Personal Data Protection Office. The President of the Office does not deal exclusively with the GDPR, as he is, according to the provisions of the Act on the Protection of Personal Data of 10 May 2018, the competent authority for the protection of personal data and has the right to address requests aimed at ensuring effective protection of personal data. Hence, the area of analysis of the President of the Polish SA includes not only the rulings of the Court of Justice of the EU interpreting the GDPR, but also any other acts and documents that may affect the assessment of the legal situation in Poland.

The President of the Polish SA therefore welcomed with great satisfaction the declaration made yesterday by the Minister of Justice and the Minister of Internal Affairs and Administration, from which it appears that measures to implement the judgment will be taken immediately.

We would like to take this opportunity to draw your attention to the fact that the governmental draft Act - Electronic Communications Law, implementing the Directive establishing the European Communications Code into Polish law, to which the President of the Personal Data Protection Office raised reservations at the stage of governmental works, is currently under way in the Sejm. In the opinion of the President of the Polish SA, the draft maintains a model of retention and provision of telecommunications data to authorised entities that is incompatible with the case law of the Court of Justice of the EU (and now probably also with the judgment of the ECHR).

On this occasion, it is also necessary to recall the need to return to the topic of the implementation into Polish law of the provisions of Directive 2016/680 of the European Parliament and of the Council (EU) (the so-called Police Directive) concerning the processing of personal data by competent authorities in connection with the prevention and combating of crime. In particular, the subject exclusions adopted by the Polish legislator require re-examination. According to them, the Implementing Act does not apply to the services listed in the Act. A discussion is also needed with regard to the effective supervision of services processing personal data (also in the context of Article 51 of the Constitution of the Republic of Poland), as well as the practical possibility of exercising the rights of data subjects.

The President of the Personal Data Protection Office will be taking action in the near future, in accordance with his powers under the provisions of the Act on the Protection of Personal Data, including making appropriate speeches to the competent authorities requesting urgent changes to the legislation.