On August 30, 2024, a group of parliamentary members submitted a draft of an act concerning introducing a new procedural institution, which the media called a “blind lawsuit,” to the procedural act and certain other acts. The draft is designed to introduce a new Section X, titled “Proceedings in the matter of the protection of personal interests against persons of unknown identity,” to the first part of the Code of Civil Procedure Act of November 17, 1964 (Journal of Laws of 2023, item 1550, as amended). This new procedural tool would enable filing a lawsuit without the need to provide the defendant’s exact data, such as name, last name, or an actual address if the plaintiff does not know them. In such cases, personal data would be replaced by defining the defendant as an “unknown person”.

Formal requirements of the claim

As stated in the draft, such a lawsuit should contain the following elements:

• An application to oblige the service provider to disclose the defendant’s data under Article 18 Section 1 and 5 of the Provision of Services by Electronic Means Act.
• Indication of the service provider—a precise indication of the provider through whom the plaintiff’s personal interests were infringed by electronic means.
• The description of the infringement of personal interests—a detailed description of how the infringement occurred, including the date and time of its publication.
• The defendant’s profile name or the login—if possible, the defendant’s profile name or login should be provided.
• Attachment of evidence—the following must be attached to the claim:
  An electronic record of a publication violating personal interests,
  A printed copy of a screenshot with the URL (if possible) and the date and time of publication.

Justification for the need for the existence of the regulations in the code

The draft’s authors intended to make it easier for injured parties to pursue their claims in case of infringement of personal interests on the Internet. The anonymity of Internet users often protects perpetrators of infringements. The core of the problem lies in the difficulty of establishing the actual data of users infringing other people’s personal interests, who often use a login or a made-up name. Moreover, despite their apparent authenticity, social media profiles are often fake. A perpetrator has one goal: to hide—so that under a “cloak of (illusory) impunity,” they may violate the personal interests of other users. Adding the proposed provisions to the Code of Civil Procedure would make it easier for injured parties to access a broader range of defense for their rights.

Identification of perpetrators of personal interest infringements on the Internet

Within seven days of filing the lawsuit, the court should request the service provider through whom the personal interests of the plaintiff were infringed to provide the defendant’s data and information about the telecommunications system provider. The service provider will have seven days to provide all the possessed data referred to in the court’s request. After receiving the requested data, the court will have seven days to request a telecommunications company to provide the defendant’s data. The telecommunications company must provide the defendant’s data within the next seven days of receiving the request. There is one crucial amendment proposed—the construction of Article 505⁴² § 5 of the Code of Civil Procedure, because, on its basis, if the service provider or telecommunications company does not provide all the data in its possession without justifiable reasons, then a fine of 100,000 PLN to 1 million PLN may be imposed on it by the court. However, if it is impossible to determine the defendant’s personal data based on the data received, the court will discontinue the proceedings.

„Blind lawsuit” or „Blind Themis”?

According to the draft’s initiators, the introduction of the new institution to the Code of Civil Procedure is dictated by the need to counteract cybercrime. Its role is to be a deterrent and, consequently, also preventive. Facilitating access to legal action is to discourage potential violators from actions that infringe on the personal interests of Internet users. Nevertheless, in our opinion, such an idea may (apart from providing the obvious benefits such as reducing the number of violations by anonymous perpetrators or improving the security on the Internet) cause numerous practical problems. Looking from a broader perspective, it is easy to see the disadvantages of the proposed regulations. Assuming a great interest in filing such lawsuits, the additional burden on the common courts on a large scale with new claims needs to be considered. Going further, the waiting time for a decision shall extend. There is also a procedural risk—as in the era of advanced digitalization, reaching the perpetrator may also be problematic. For example, it might be related to the service provider’s incorrect indication of the defendant’s data. Despite its obvious potential, the institution of a “blind lawsuit” may be a tool that carries challenges. It might be asked whether the introduction of the amendments will improve the protection of personal interests on the Internet.

We encourage you to watch the following material on the ‘blind lawsuit’ project under discussion. Patrycja Rejnowicz-Janowska, attorney-at-law, Counsel of Jabłoński Koźmiński i Wspólnicy law firm, was a guest of Telewizja BIZNES24.