Overview (March 2001)

Introduction
E-contracts
Relevant Laws
Consumer Protection
Privacy

Introduction

This overview provides a summary of the current situation under the existing laws and their applicability to the new economy.

E-contracts

Poland has not adopted any special legislation regarding electronic transactions and therefore there is no comprehensive regulatory framework for e-contracts. The basis for their assessment is primarily the Civil Code, which regulates expressions of will, their required form and the overall validity of agreements.

The E-Signature Law is expected to be implemented during 2001 and will recognize e-contracts.

Validity
According to the Civil Law a contract is concluded when two parties provide statements of will, which "may be expressed by any behaviour sufficient to ascertain such will". Thus, a signature on an agreement and clicking on an 'OK' button on a web site will have equal contractual value.

Form
The Civil Code imposes a number of requirements as to the form of an agreement. For example, real estate transactions require a notarial deed and transactions exceeding the equivalent of $500 must be in writing. In order to meet the written form requirement, documents containing the statement of will must be signed by hand. Therefore e-documents, although valid as statements of will, are not deemed to meet the written form requirement. The same principle applies to e-contracts. If the written form requirement is not met, in the event of a dispute, the law imposes restrictions on the parties as to the forms of evidence that can be submitted in proving the existence of the contract. E-mails or other computer printouts could be considered as evidence, although there is no case law to confirm this matter. Thus, there is a degree of uncertainty as to whether e-contracts of a value exceeding $500 can be enforced in court.

Relevant Laws

Banking law
The Banking Law allows for the conclusion of banking transactions with the use of electronic media, provided that e-documents used for such a transaction are properly secured and stored. As an exception from the general principles, such transactions are regarded as being in written form despite the lack of a handwritten signature.

Administrative procedure
E-documents are considered to be effective under the Code of Administrative Procedure. All motions and petitions may be presented to an administrative authority in writing, by telegraph, fax or by e-mail. However, in practice, this is not yet being widely used due to the lack of official infrastructure and trained personnel.

Accountancy law
According to the Accountancy Law, financial records may be kept on electronic media, provided relevant procedures and measures protecting them against destruction or modification have been implemented.

Protection of Polish language
According to the Polish Language Law of 1999, agreements that are concluded with Polish entities or by entities that have registered offices or places of residence in Poland should be drawn up in the Polish language. Although such agreements may also exist in other languages, it is unlikely that they would be admissible in court as evidence. Even if the parties choose a foreign jurisdiction, a Polish version of the agreement must be drawn up in order to be sure that a foreign judgement may be enforced in Poland. This law has been heavily criticized as being incompatible with the needs of international trade (in particular e-commerce). It will be amended soon.

Intellectual property
Regarding domain names and trademarks, there is no specific legislation dealing with domain name registration or cybersquatting.

Polish copyright law is in line with EU standards and World Intellectual Property Organization treaties. Copyright protection applies to the Internet as to any other media. However, neither copyright nor any other laws address issues specifically relating to e-commerce, such as liability of site operators and internet service providers.

Consumer Protection

On July 1 2000 new consumer protection legislation became effective. It covers abusive clauses in consumer contracts, liability for dangerous products and distance contracting, including electronic transactions.

The law is in line with EU standards and offers consumers protection from credit card abuse and the right to withdraw from a contract without having to give reasons for doing so, among other rights.

Privacy

Since 1997 a law that is generally in line with EU standards has regulated personal data protection, although the Polish law is stricter.

The law imposes various obligations on data administrators, who may process data only on a basis specified in the law. Databases must be registered with the relevant authorities which oversee the fulfilment of legal conditions for data processing. However, the law does not address issues relating to processing personal data online.

For further information on this topic please contact Marek Rosinski or Radca Prawny at CMS Cameron McKenna by telephone (+48 22 520 5555) or by fax (+48 22 520 5556) or by e-mail ([email protected] or [email protected]).