Every company needs to protect its reputation. This article examines what goodwill is, and aside from other tactics, how to use provisions of criminal law to protect a company's reputation.

Defining legal person's goodwill and examples of its violation

Taking care of a legal person's goodwill (reputation) is an inherent element of proper management of an organization. Goodwill is nothing more than a legal person's personal right, being equivalent to a natural person's reputation or honor. Preventing and responding attacks on that goodwill are elements of protecting personal rights. And as everyone knows, a company's goodwill is particularly exposed due to the freedom of information exchanged and the ease of publishing opinions on the Internet.

Personal rights are most often violated in connection with posting of unfavorable comments on the Internet, on social media, in particular on X (formerly Twitter), Facebook, less frequently on LinkedIn. Furthermore, personal rights may also be violated by media statements on the radio, in magazines or in television. There are legal protections, but they are hard to enforce.

Criminal law vs civil law measures

Initiating proceedings before a civil court to protect personal rights, including goodwill, honor or reputation, is undoubtedly the first choice, primarily due to its effectiveness. In civil proceedings, the injured party may obtain interim (security) measures, including a ban on publishing certain content, even before the final resolution of the case. The resolution of the case may lead to an award of compensatory damages and/or non-pecuniary damages, as well as an obligation for the perpetrator to refrain from further violations. However, due to the specific nature of these proceedings, including the need to incur preliminary court fees which amount from PLN 600 (~ EUR 133) and/or approximately 5% of the claimed amount (up to PLN 200,000 ~ EUR 44,444), this is not always the optimum solution. Its practical application may sometimes resemble using a cannon to kill a mosquito.

The nature of the violation does not always allow for a measurable determination of the losses incurred and does not justify the use of significant material resources against the perpetrator, in particular when, for example, the violation consisted in posting an unfounded, defamatory comment on a social media site about the services provided, and, as a consequence, jeopardize the injured party from loss of reputation in a situation where he generally enjoys a good reputation and the general opinion about him is positive. In such situations, the main intention of the injured party is rather to effectively remove the comment from the Internet, discourage the perpetrator from further violations and deter others who might otherwise also publish critical comments about the injured party.

An adequate solution in such cases may be to initiate criminal proceedings based on a private indictment, primarily for the crime of defamation, which, pursuant to the Criminal Code, e.g. Article 212 means accusing another person, a group of people, institution, a legal person or an organizational unit without legal personality of such a conduct or characteristics that may humiliate them in the public opinion or expose them to a loss of trust necessary for a given position, profession or type of activity. Undoubtedly, most violations of goodwill, honor or reputation meet the criteria of the said crime. It is worth mentioning here that in practice there are often situations when the described violation involves the use of offensive words, which may violate individuals' dignity and at the same time constitute an insult.

These crimes are punishable by a fine or restriction of liberty, while committing them through mass media (for example on a social networking site or in the media) increases the potential penalty to one year of imprisonment. Most often, the very possibility of being held liable may deter a potential perpetrator from committing them. Regardless of the final penalty, the very fact of conviction significantly complicates their professional activity (convicted people have a significantly lower chance of employment) and most people functioning in a society avoid being convicted like a plague.

Costs of criminal vs civil proceedings

Initiating criminal proceedings based on a private indictment, regardless of the number of violations and the number of people accused in one proceeding, requires payment of a fixed fee amounting to PLN 300 (EUR 67). If you compare it to the initial court fee in civil proceedings it is clearly a more cost-effective option.

Moreover, even though there is a principle in civil proceedings that the losing party is obliged to reimburse the costs of civil proceedings, there is no guarantee that the defendant will be solvent and the plaintiff (the injured party) will be able to recover the funds incurred to protect their own rights. Therefore, initiating civil proceedings requires a more precise assessment of the risks associated with its conduct.

Finally, it is not without importance that if you want to sue somebody in a civil court, you need to know their personality, which is quite difficult a condition to meet if we are dealing with an Internet infringement. In such a situation, the injured party must take a number of actions to determine the identity of the perpetrator, including determining the IP number of the device used by the offender, the data of the device owner and data of the user who actually made the post or comment.

The situation is easier in criminal proceedings, since the provisions governing criminal proceedings initiated as a result of a private indictment let the court order that the Police undertake actions to collect evidence. However, the evidentiary motions submitted in connection with the proceedings must precisely specify what evidence should be obtained or which circumstances require confirmation since such actions will not be undertaken ex officio (i.e. without the injured party's initiative) to a broader extent.

Moreover, the provisions regulating the protection of personal data and telecommunications secrecy provide for significant exclusions as regards the sharing of information, including personal data, for the purposes of criminal proceedings. In each case, time is of the essence since the public telecommunications networks operators are obliged to store the connection data for a period of 12 months and, after this period, destroy the data (pursuant to Art. 180a Telecommunications Act), which makes it practically impossible to identify the author of the harmful post or comment.

Restrictions and weaknesses of criminal law measures

The advantages of criminal law protection measures presented above must, of course, be matched with their obvious weaknesses. First of all, let us discuss the problem of the statute of limitations for the crime of defamation. According to Article 101 par. 2 of the Criminal Code, the injured party may file a private indictment for defamation within a year from the moment of learning who was the perpetrator of the act, but no later than 3 years from the moment the crime of defamation was committed. Pursuant to Article 102 of the Criminal Code, the initiation of defamation proceedings within the specified period of time results in the extension of the limitation period for this crime by 5 years. Hence, if the perpetrator is not sentenced within 8 years from the moment the crime was committed, they cannot be convicted under the Polish criminal law.

The limitation period for pursuing claims related to damage to goodwill (reputation) in civil proceedings is generally longer than the period for prosecution of a crime of defamation. Pursuant to Article 442(1) par. 1 of the Civil Code, the civil law claims in question are subject to a limitation period of three years from the date on which the injured party found out or, while exercising due diligence, could have found out about the damage and the person obliged to repair it, and this period cannot be longer than ten years from the day on which the violation occurred.

Hence, in a situation of a defamatory social media publication, if it was made by a person using their real data, and the injured party learned of the publication on the same day but decided to take a legal action after one year from the event, a private indictment measure will no longer be available and the injured party will only be able to file a lawsuit in civil proceedings, which measure will continue to be available within the next two years.

Another important issue I would like to touch on is the place and time of committing the crime of defamation, which pursuant to Article 6 of the Criminal Code, is crucial for the possibility of prosecuting the perpetrator in criminal proceedings. The place of committing the crime in question will generally be the place where the perpetrator acted, which in the case of making Internet posts (e.g. on a social networking site) should be identified with the place (town) where they could use the Internet, for example at home or at work. The time of committing such a crime will be the time when the perpetrator's action took place.

Generally, there should be no problem with holding the perpetrator (regardless of his citizenship) criminally liable if they acted in Poland. The situation becomes more complicated when the perpetrator committed the crime of defamation abroad. Pursuant to Article 111 of the Criminal Code, the general condition to hold them liable for defamation committed outside of Poland is that such an act will be recognized as a crime also where it was committed. In such a situation, Polish citizens may be held liable for defamation under Article 109 of the Criminal Code and foreigners under Article 110 par. 1 Criminal Code, provided that the defamatory action was undertaken against the interests of a Polish citizen, a Polish legal person or a Polish organizational unit without legal personality.

Regardless of the above remarks, it should always be examined whether there is an international agreement between Poland and the country in which the crime of defamation was committed or the country where the perpetrator has moved to, to allow for prosecution there. Even if there are substantive criminal grounds for such liability, in practice it may be formally impossible to enforce it.

Concluding, regardless of the nature of the proceedings (criminal, civil or both) that will ultimately be initiated in connection with the disclosure of a violation of personal rights, including goodwill (reputation), you should always seek professional legal assistance, which will let you assess the measures that can be used, thus ensuring the greatest possible satisfaction for those injured as a result of the violation of personal rights.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.