Criminal liability for document photocopy or scan?

The new Act on Public Documents stipulates criminal liability (up to 2 years of imprisonment) for production, offering, selling and storage with intent to sell of replicas of public documents (such as identity cards, driving licences, enforcement orders). Does it apply to photocopies of identity cards?

Can identity cards be photocopied?

It is an everyday occurrence when somebody asks you for a photocopy or scan of your identity card. Telecommunications companies, payment processors, banks, insurance companies or even sports equipment rental shops photocopy identity cards. Is it always justified?

On 12 July 2019, the new Act on Public Documents came into force. It stipulates the rules of the security system functioning, which means their design, creation, storage and authenticity verification, and also change of security features of those documents, raising awareness and international cooperation in relation to public document security.

It also contains one criminal provision that should be noted – Article 58 that reads as follows: “Whosoever produces, offers, sells or stores with intent to sell a public document replica shall be subject to a fine, penalty of limitation of liberty or imprisonment for up to 2 years”. In this context, some commented that this provision allows imposing penalties for photocopying identity cards. Other voices state that penalties only apply to the so called “collectible identity cards”. We will explain what the truth is and why.

Public document – what is it?

The Act provides very broad definition of public documents. It will include every “document that is used to identify persons, things or confirm legal status or rights of persons that use such document secured against falsification”. Such document, to put it simply, is made in accordance with a template stipulated by law or on the basis of a form/model approved by a relevant authorised body.

For example, public documents are not just identity cards or passports, which are identity documents, but also driving licences.

Apart from the broad general definition the Act also defines a list of other documents deemed to be public documents. Those are vital statistics certificates, enforcement orders, rulings issued by courts or legal secretaries, some writs of execution, and selected documents drawn up by notaries.

What is more, “copies, transcripts, duplicates and replacements of public documents are public documents”.

Public document replica – what is it?

According to the Act on Public Documents, a replica is the following copy/imitation of a public document:
– its size is from 75% to 120% of the original;
– it has the authenticity features of a public document or public document form“.

So, is photocopying of identity cards allowed? Obviously, leaving out other limitations that may arise from personal data protection laws (GDPR) in this context, nobody will go to jail for photocopying an identity card.

When we talk about a replica of a piece of art or a weapon, we think about objects that are confusingly similar to the original, which includes materials they are made of, shape, size, characteristics or even safeguards. A document replica is similar – it would have to have “authenticity features” of the original.

Please note, however, that the list of documents that will be deemed public documents includes also documents that do not contain obvious and complex security features like an identity card (such as holograms, raised elements, etc.). In such cases a photocopy or computer printout may be confusingly similar to the original, which means that, depending on the circumstances, they may be deemed to be replicas.

Such interpretation has also been confirmed by the Ministry of Internal Affairs and Administration that stated that the main objective of the new regulation is to develop security system for public documents. This means that it is to protect public document holders against the use of any imitations, falsified documents, closely resembling the true, original documents, as such fakes may be used to commit crimes, like identity theft or obtaining a loan with the so called “collectible documents”.

When can I be sure that I can make a photocopy?

It is important to remember that the Act expressly allows making photocopies or computer printouts of identity cards. This applies to:

1. Official, work or professional purposes determined on the basis of separate laws (for example, for the needs of identification by banks, insurance or telecommunications companies for the purposes stipulated in the Anti-Money Laundering and Terrorism Financing Act);
2. The needs of the person to whom a public document had been issued.

Should you photocopy identity cards?

Even if the above arguments lead to the conclusion that identity card photocopying will not result in criminal liability, you should remember that it may still constitute a breach of personal data protections rules. Not all information contained in an identity card is necessary to everyone who asks for a photocopy or scan of that document. Before you decide to ask for a photocopy, think whether it is justified in the given circumstances.

Author:
Joanna Szumiło – attorney at law