The coronavirus pandemic in no way affected Ukrainians’ decisions to open a business abroad, particularly in Poland. In 2020, the number of individual entrepreneurs – citizens of Ukraine, increased by 22% – to 5916 people. Ukrainians are the largest group of foreign entrepreneurs, representing 25% of the total number of foreign-owned companies in Poland. According to the Embassy of Ukraine in Poland, at the end of 2020 there were 16.5 thousand companies in the Republic of Poland, in which at least one of the co-owners or shareholder is a citizen of Ukraine.
Business in Poland is clear and lucrative, so these figures do not seem strange. But you should know that when opening a new market, or starting a business in this country, it is important to maintain goodwill, business reputation of the company. There are many risks of losing goodwill: complaints to various government agencies and organizations about the company’s illegal activities, publications on the Internet and much more.
In such circumstances, the issue of protection of goodwill (business reputation) of legal entities in Poland is relevant and interesting.
According to Art. 23, 43 of the Civil Code of Poland (Kodeks cywilny – Ustawa z dnia 23 kwietnia 1964 r.) The provisions of the Code on the protection of non-property rights of an individual are also applied when protecting the rights of a legal entity. These provisions apply to a fairly wide range of entities: private entrepreneurs, legal entities (limited liability company, organizational unit without legal personality, general partnership, partnership).
In practice, the most frequently the subject of violated non-property rights of a legal entity is the protection of “dobrego imienia osoby prawnej” (goodwill of the legal entity).
The term “goodwill of a legal entity” includes statements, value judgments and information about the legal entity (publicly available information related to the company’s activities that may influence the opinion on the company).
In this regard, the position of the Supreme Court of Poland (Sad Najwyzszy) is interesting. In its judgment of 22 January 2015 (I CSK 16/14), the Court stated that “the goodwill of a legal person is linked to the opinion of other persons about it through the scope of its activities”. It is necessary to take into account the reputation arising from the previous activities of the legal entity, even from the moment of its creation.
Herein it is also advisable to pay attention how a legal entity can protect the infringed right (protection of business reputation) as a result of illegal actions of third parties.
In particular, the provisions of Art. 24 and Art. 448 of the Civil Code (Kodeks cywilny – Ustawa z dnia 23 kwietnia 1964 r.) Indicate that if in case of violation of “personal good” damage was caused, the victim may claim compensation on general grounds and demand financial compensation for damage (loss of customer confidence), as well as demand financial compensation for the damage (Wyrok SN z dnia 17 marca 2006 r., I CSK 81/05).
However, if a violation has already been identified, the person whose rights have been violated may apply for remedial action.
In addition to the provisions, it should be borne in mind that Polish law treats the dissemination of false or misleading information about a company or other entrepreneur for profit or harm as an act of unfair competition, in which case the provisions of the Unfair Competition Prevention Act (Ustawa z dnia 16 kwietnia 1993 r. o zwalczaniu nieuczciwej konkrici) and sanctions provided by this Act.
Consider the most common type of violation of non-property rights of a legal entity – the dissemination of inaccurate information about the activities of a legal entity on the Internet.
In Ukraine and Poland, it is common for Internet forums to deliver value judgments in which users criticize companies. In this regard, the Court of Appeal of Katowice (Sad Apelacyjny w Katowicach) emphasizes that the publication on the Internet forum can be criticized, especially if the posts are related to the company’s reputation and the services it provides (Wyrok SA w Katowicach z dnia 13 lutego 2014 (I ACa 1086/13, niepubl).
However, the content of the post is important. In order to speak of a violation of personal non-property rights (to protect the goodwill of a legal entity), the content of the post (publication) posted on the Internet must contain statements or facts.
An example is a case in which a creditor claimed that his business partner was an unreliable debtor (wyrok Sadu Apelacyjnego w Krakowie z dnia 21 maja 2010 r., I ACa 430/10, LEX nr 677943). The court, considering the case, ruled that the dissemination of such information adversely affects the goodwill of the legal entity.
However, if the post (publication) has assumptions, it will be quite difficult to prove the fact of violation.
It is also important to understand who will be responsible for disseminating inaccurate information that adversely affects the goodwill of a legal entity. On the subject, it is worth referring to the position of the Supreme Court (Sad Najwyzszy), which considered (sygn. Akt I CSK 511/16) the case of dissemination of inaccurate information.
The court found that the webmaster should prove that he was not aware of the posts (information disseminated by the user), however, if it is established that he was aware of such information, the administrator may be held liable.
Speaking about the mechanism of protection of the infringed non-property right (protection of the goodwill of the legal entity), it is necessary to remember that the claim should be brought to Sadu Okregowego (at the location of the defendant where the non-property right was infringed).
For instance, there may be a problem with the application to the court that the plaintiff must indicate the name and address of the defendant. This data is not always available to the plaintiff, so such information is often required from providers under special laws (Ustawa z dnia 16 lipca 2004 r. Prawo telekomunikacyjne).
In practical terms, the record the facts of dissemination of information that has a negative impact on the goodwill of the legal entity is pretty interesting.
The help of a notary will be required to collect evidence proving the violation of personal rights on the Internet. In practice, a website review report is drawn up, which records the information that may relate to the subject matter of the dispute as fully and as accurately as possible. Having recorded certain facts, the notary certifies them in such a protocol. Herein it is worth paying attention how the judicial practice on this issue was formed. Back in 2005, in its decision, the court (Wyrok Wojewódzki Sad Administracyjny w Bialymstoku of 23 June 2005 (sygn. Akt II SAB / Bk 32/05)) stated that duly certified authentic photocopies of documents or certified copies of e-mails – are the copies of documents equivalent to original evidence in evidentiary value.
The information that is disseminated on the Internet is crucial for the successful operation of the company, so this should be taken into account.
Judicial practice in Poland to protect the goodwill of a legal entity is well-established, and courts deal with this category of cases quickly enough.
We sincerely believe that Ukrainian businesses will not have to defend the goodwill of their companies operating in Poland. In any other case, you can always count on the legal support of the Attorneys Association “Bauman Kondratyuk”.
Yuri Bauman
Managing Partner Attorneys Association “Bauman Kondratyuk”