Can a legal person claim compensation for a negative opinion posted on the Internet?

Can a legal person claim compensation from an natural person for a negative opinion posted on the Internet? The Supreme Court in its resolution of 3 October 2023 (ref. III CZP 22/23) answers affirmatively, but the judicature is not uniform in this matter.

Recently, doubts about the answer to the above question were raised by the Court of Appeal in Gdańsk, when considering an appeal against a judgment in a case concerning the protection of personal interests. The origin of the conflict was the negative opinion posted by a user on the Google Maps portal about the company and its products. The company demanded not only an apology and removal of the opinion, but also an adjudication of more than PLN 20,000 in compensation for the harm suffered. The District Court in Gdańsk partially granted the claimant’s demands, but in the second instance, the outcome of the case was not so apparent. The Court of Appeal in Gdańsk eventually turned to the Supreme Court with the question ‘whether a legal person may demand that a person who has violated its personal interests pay compensation for the harm suffered on the basis of Article 448 of the Civil Code (now Article 448 §1 of the Civil Code) in conjunction with Article 43 of the Civil Code”.

Therefore, we shall look at the content of the cited provisions. Pursuant to Article 448 §1 of the Polish Civil Code, in the event of infringement of a personal interests, the court may award to the person whose personal interests have been infringed an appropriate amount as financial compensation for the harm suffered, or award an appropriate sum of money for a social cause, irrespective of other means necessary to remove the effects of the infringement. On the other hand, Article 43 of the Civil Code states that the provisions on the protection of personal interests of natural persons apply accordingly to legal persons.

The main reasons for the inconsistency of the jurisdiction and doctrine regarding the possibility for legal persons to claim compensation for harm suffered are, firstly, the diverse understanding of the concept of “harm” and, secondly, the construction of the appropriate application of the provisions introduced in Article 43 of the Civil Code, which can essentially lead to:

1/ the application of the provisions in question without any modification,

2/ the application of the provisions in question with appropriate modifications, necessary in view of the specific features of the case in consideration, or

3/ the non-application of the provisions in question, due to their conflict with the provisions that regulate the relationship to which they would be appropriately applied.

It is a settled position of the Supreme Court that, due to the content of Article 43 of the Civil Code, only Article 24 of the Civil Code can be applied directly to legal persons, while the other provisions on the protection of personal interests can only be applied accordingly – and this is where the problem essentially arises.

One strand of jurisdiction favours the possibility of awarding compensation for non-material damage to a legal person, pointing out that the concept of non-material damage referred to in Article 448 §1 of the Civil Code cannot be equated only with the suffering of physical and mental suffering by natural persons. It is clear that legal persons do not experience physical or mental sufferings, however, they suffer non-pecuniary damage as a result of the violation of their personal interests, which cannot be measured in money. Therefore, according to the proponents of this view, such damage should be compensated accordingly as the harm experienced by individuals. The courts also draw attention to the general wording of Article 448 §1 of the Civil Code, which allows for a broader scope of its application, in particular comparing it with Articles 444 and 445 of the Civil Code, which directly refer to bodily injury and disorder of health, the application of which to legal persons is explicitly excluded.

Those who advocate the opposite view, however, argue that legal persons are not entitled to a claim for monetary compensation because the harm cannot materialise in the legal person and the equivalent condition of the legal person to the harm cannot be reasonably demonstrated. This means that, in this case, the order of applicability from Article 43 of the Civil Code leads to the conclusion that legal persons are not entitled to a claim for compensation. They also rely on a systemic interpretation, pointing out that since Article 448 §1 of the Civil Code is located after the provisions regulating personal injury (Articles 444 and 445 of the Civil Code), which are indisputably inapplicable to legal persons, Article 448 §1 of the Civil Code also applies only to claims by a natural person.

This was also the approach taken by the Court of Appeals in Gdansk in the case in question, as well as by the Ombudsman, who submitted his participation in the proceeding before the Supreme Court and requested that the Supreme Court exclude the possibility of awarding compensation for harm suffered by legal persons in connection with the unlawful violation of their personal interests. However, the Supreme Court unequivocally stated that Article 448 of the Civil Code (now Article 448 §1 of the Civil Code) applies mutatis mutandis to legal persons, which means that a legal person can demand payment of compensation for the harm suffered.

However, it is worth bearing in mind that, as a rule, resolutions of the Supreme Court are binding only on the court in a specific case in which a legal issue has been presented for judgment. Only such resolutions of the Supreme Court that have been issued by the full court, the combined chambers and the full chamber, or if a panel of 7 judges has decided to give the resolution such force, are given the force of law.