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FOURTH
SECTION
CASE OF KULIŚ AND RÓŻYCKI v. POLAND
(Application
no. 27209/03)
JUDGMENT
STRASBOURG
6 October
2009
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial
revision.
In the case of Kuliś and
Różycki v. Poland,
The
European Court of Human Rights (Fourth Section), sitting as a Chamber
composed of:
Nicolas Bratza, President,
Lech
Garlicki,
Giovanni Bonello,
Ljiljana
Mijović,
Päivi Hirvelä,
Ledi
Bianku,
Nebojša Vučinić, judges,
and
Fatoş Aracı, Deputy
Section Registrar,
Having
deliberated in private on 15 September 2009,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 27209/03) against the Republic
of Poland lodged with the Court under Article 34 of the Convention
for the Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by two Polish nationals, Mr Mirosław Kuliś,
and Mr Piotr Różycki (“the applicants”),
on 10 June 2003. The second applicant died in 2004.
- The
applicants were represented by Mrs A. Wyrozumska, Professor
of Law at the University of Łódź. The Polish
Government (“the Government”) were represented by
their Agent, Mr J. Wołąsiewicz of the
Ministry of Foreign Affairs.
- The
applicants alleged a breach of their right to freedom of expression
guaranteed by Article 10 of the Convention.
- On
4 April 2008 the President of the Fourth Section decided to give
notice of the application to the Government. It was also decided to
examine the merits of the application at the same time as its
admissibility (Article 29 § 3).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicants were born in 1956 and 1946 respectively. The first
applicant lives in Łόdź.
- The
first applicant owns a publishing house named “Westa Druk”
which publishes a weekly magazine, Angora, and its supplement
for children, Angorka. The second applicant was the editor in
chief of the magazine.
- On
16 May 1999 Angorka published an article referring
to an advertising campaign by a company, Star Foods, for
its potato crisps. On the first page of the magazine there was a
cartoon showing a boy holding a packet, with the name “Star
Foods” on it, saying to Reksio – a little
dog, a popular cartoon character for children – “Don't
worry! I would be a murderer too if I ate this muck!” (“Nie
martw się – też bym był mordercą, gdybym
jadł to świństwo!”).
Above the cartoon, there was a large heading reading “Polish
children shocked by crisps advertisement, 'Reksio is a murderer'
(Reksio to morderca)”.
- The
article, printed on the second page of the magazine, read as follows:
“Recently in Star Foods crisps [packets] stickers
appeared which terrified parents and their children: 'Reksio is a
murderer'.
In the [packets of] crisps from the company Star Foods,
which are stocked on the shelves of almost all shops, stickers
appeared recently which terrified parents and children. In the
packets there are little pieces of paper bearing the slogan: “Reksio
is a murderer”.
Before the stickers appeared in the packets of crisps
the company ordered a market study. One of the advertising agencies
proposed slogans and sayings used every day by teenagers. Children,
however, are terrified by those slogans.
...
Prepared following 'the Super Express'”
- The
above quoted article on the second page was accompanied by a small
cartoon featuring two cats holding a packet with the word “crisps”
on it and the dog Reksio in the background. One cat holds a
piece of paper with the slogan “Reksio murderer”
apparently taken out from the packet and says to the second cat -
“surely, he is sometimes unpleasant, but a murderer?!”
(“Owszem, nieraz bywa przykry, ale żeby od razu
mordercą?!”).
- On
2 November 1999 Star Foods (“the plaintiff”) lodged
against both applicants a civil claim for protection of personal
rights. The company sought an order requiring the defendants to
publish an apology in Angora and Angorka for publishing
a cartoon discrediting, without any justification, Star Foods
products. They further sought reimbursement of their legal costs and
payment by the applicants of 10,000 Polish zlotys (PLN) to a charity.
- On 28 May 2001 the Łόdź Regional Court
(Sąd Okręgowy) found for the plaintiff. The court
ordered the applicants to publish apologies as sought in the
statement of claim and to pay PLN 10,000 to a charity. The applicants
were also ordered to pay the plaintiffs PLN 11,500 to reimburse the
costs of the proceedings. The court considered that the cartoon
in question had breached the personal rights of the plaintiff
and discredited the products of the company. The words used by the
applicants had an unambiguous meaning relating to disgust and
repulsion and were strongly pejorative. Accordingly, the court
concluded that the applicants had overstepped the threshold of
permissible criticism, in particular in a magazine aimed at
children. The court dismissed the applicants' arguments that the
cartoon had aimed to criticise the advertising campaign run by Star
Foods and not their product. It considered that such an attack on the
plaintiff's personal rights could not have been justified even
by the argument that their campaign was ill-considered.
- The
applicants appealed against the judgment.
- On
21 March 2002 the Łόdź Court of Appeal dismissed the
appeal and ordered the applicants to pay the plaintiffs PLN 2,500 to
reimburse the costs of the appellate proceedings. It agreed with the
lower court's assessment that the critical statement had not
concerned the style of advertisement adopted by Star Foods.
Calling the product of the company “muck” was surely not
a critical assessment of their advertising campaign but had been
aimed at the product, the brand, and the good name of the company.
The statement in question “I would be a murderer too if I ate
this muck” contained an obviously negative assessment of the
taste and quality of the product. Thus, the applicants' action aimed
to discredit, without justified grounds, the product of Star Foods
and as such could not enjoy the benefit of legal protection. The
appellate court also observed that the applicants had repeatedly
relied on the interests of children to justify their actions, while
they themselves had repeated, in the supplement for children, the
slogan that in their opinion had had a negative impact on children's
emotions and had terrified them.
- On
12 December 2002 the Supreme Court refused to examine the cassation
appeal lodged by the applicants.
II. RELEVANT DOMESTIC LAW
- Article
23 of the Civil Code contains a non-exhaustive list of the rights
known as “personal rights” (dobra osobiste). This
provision states:
“The personal rights of an individual, such as, in
particular, health, liberty, reputation (cześć),
freedom of conscience, name or pseudonym, image, secrecy
of correspondence, inviolability of the home, scientific or
artistic work, [as well as] inventions and improvements shall be
protected by the civil law regardless of the protection laid down in
other legal provisions.”
- Article
24 of the Civil Code provides for ways of redressing infringements of
personal rights. According to that provision, a person facing the
danger of an infringement may demand that the prospective perpetrator
refrain from the wrongful activity, unless it is not unlawful. Where
an infringement has taken place, the person affected may, inter
alia, request that the wrongdoer make a relevant statement in an
appropriate form, or claim just satisfaction from him/her. If an
infringement of a personal right causes financial loss, the
person concerned may seek damages.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION
- The
applicants complained of a breach of Article 10 of the
Convention, which reads as follows:
“1. Everyone has the right to freedom
of expression. This right shall include freedom to hold opinions and
to receive and impart information and ideas without interference by
public authority and regardless of frontiers. This Article shall not
prevent States from requiring the licensing of broadcasting,
television or cinema enterprises.
2. The exercise of these freedoms, since it
carries with it duties and responsibilities, may be subject to such
formalities, conditions, restrictions or penalties as are prescribed
by law and are necessary in a democratic society, in the interests of
national security, territorial integrity or public safety, for the
prevention of disorder or crime, for the protection of health or
morals, for the protection of the reputation or rights of others, for
preventing the disclosure of information received in confidence, or
for maintaining the authority and impartiality of the judiciary.”
- The
Government contested that argument.
A. Admissibility
- The
Court notes that the application is not manifestly ill-founded within
the meaning of Article 35 § 3 of the Convention. It further
notes that it is not inadmissible on any other grounds. It must
therefore be declared admissible.
B. Merits
1. Arguments of the parties
- The
applicants submitted that the interference with their right
to freedom of expression had not been necessary in a democratic
society as it had not been justified by a pressing social need.
They maintained that what was at stake in the present case was not
purely commercial interests but participation in a general debate. In
such cases the existence of particularly strong reasons for
restricting the freedom of the press in a democratic
society was necessary and the national margin of appreciation
was limited.
- The
applicants argued that the cartoon in question had to be examined
in the full context in which it had been published. It was one of two
cartoons referring to the advertising
campaign run by Star Foods and was accompanied by the heading
“Polish children shocked by crisps advertisement...” and
a clear indication that the details could be found in the
article on the second page. The applicants stressed that the slogan
“Reksio is a murderer”, on which they had based the
cartoon in question, had been only one example – of a mild
nature in comparison to others – of highly inappropriate
phrases which had been used in the campaign directed at children.
Others alluded to sexual behaviour and alcohol drinking or were of a
racist and chauvinistic nature. Examples of other slogans included:
“I'm pretty but not easy (“Jestem ładna ale nie
łatwa”), “Where are the panties?” (“Gdzie
są majtki?”), “You fool! I multiply with ease”
(Ty baranie!, łatwo się rozmnażam!”),
“Entertain me” (“Rozerwij mnie”),
“Stick with me” (“Przyklej się”),
“I can't on Saturday” (“W sobote nie mogę”),
“Drink Your Highness” (“Pij Waść!”),
“Don't drink alone (to the mirror)” (“Nie pij do
lustra”), “100 years behind Blacks” (“Sto
lat za murzynami”; meaning to be backward), ”Poles –
go farming” (“Polacy na pole”), “People
to Zoo” (“Ludzie do Zoo”).
The
inappropriateness of such a campaign had been clearly a matter of
public interest and the subject had been raised by some newspapers.
Thus the applicants had been justified in joining this debate.
- The
applicants submitted that the cartoon had been a satirical commentary
on the article and disagreed that it had obviously attacked the good
name of the product. They maintained that they had not been
interested in criticising the quality of the product. Ultimately, the
use of such wording was a consequence of employing a simplified
and satirical form of expression as the publication had been
addressed to children. Admittedly, they had used provocative and
inelegant language and the journalistic form had been exaggerated;
nevertheless, the cartoon remained within the limits of acceptable
criticism which should be allowed in a democratic society.
- The
applicants also considered that the plaintiff company had not
incurred any material damage, and even if the good name of the
company had suffered it had been more as a consequence of the
ill-considered advertising campaign than their publication. The
applicants concluded that the reasons adduced by the domestic
authorities had not been relevant or sufficient to show that the
resulting judicial decision had been necessary in a democratic
society. The domestic courts had failed to achieve a balance between
the two interests at stake – that of the freedom of the press
and protection of the reputation of the company.
- The
Government admitted that the penalty imposed on the applicants had
amounted to an “interference” with their right to freedom
of expression. However, they submitted that the interference was
“prescribed by law” and pursued a legitimate aim as it
was intended to protect the reputation and rights of others.
- The
Government argued that the applicants had overstepped the boundaries
of what is protected by Article 10 and breached the plaintiff
company's personal rights. The domestic courts' reaction was thus
legitimate and necessary in a democratic society as they were
responding to a “pressing social need” to protect
the rights of Star Foods. Moreover, the courts had fairly assessed
the relevant facts and ordered a moderate penalty.
- The
Government submitted that while the text published by the applicants
concerned the advertising campaign, the cartoon on the front page of
the magazine referred exclusively to the product of Star Foods. The
applicants, in the cartoon under consideration, had not directed
their exaggerated criticism at the advertising campaign but at the
product itself clearly stating that crisps produced by Star Foods
were “muck”. They considered that the cartoon sent an
obvious message to the readers – children – “that
they should keep away from the products referred to in such critical
and derogatory language”. The applicants had discredited the
potato crisps produced by the company without providing any valid
reason for doing so and had failed to provide any factual basis which
could support their value judgment regarding the product.
- The
Government concluded that the interference complained of had been
proportionate to the legitimate aim pursued and thus necessary
in a democratic society to protect the reputation of
others. They submitted that there had been no violation of Article 10
of the Convention.
2. The Court's assessment
(a) General principles
- The
Court reiterates that freedom of expression, as secured
in paragraph 1 of Article 10, constitutes one of the
essential foundations of a democratic society and one of
the basic conditions for its progress and for each individual's
self-fulfilment. Subject to paragraph 2, it is applicable not
only to “information” or “ideas” that are
favourably received or regarded as inoffensive or as a matter of
indifference, but also to those that offend, shock or disturb. Such
are the demands of that pluralism, tolerance and broadmindedness
without which there is no “democratic society” (see,
among many other authorities, Oberschlick v. Austria (no. 1),
judgment of 23 May 1991, Series A no. 204, § 57, and
Nilsen and Johnsen v. Norway [GC], no. 23118/93, §
43, ECHR 1999 VIII).
- There is little scope under Article 10 § 2 of the
Convention for restrictions on political speech or on debate on
questions of public interest (see Sürek v. Turkey (no.
1) [GC], no. 26682/95, § 61, ECHR 1999-IV).
No
doubt Article 10 § 2 enables the reputation of others –
that is to say, of all individuals – to be protected; but in
such cases the requirements of such protection have to be
weighed in relation to the interests of open discussion of political
issues (see Lingens v. Austria, cited above, § 42).
- The
pre-eminent role of the press in a State governed by the rule of law
must not be forgotten. Although it must not overstep various bounds
set, inter alia, for the prevention of disorder and the
protection of the reputation of others, it is nevertheless incumbent
on it to impart information and ideas on political questions and on
other matters of public interest. Freedom of the press affords the
public one of the best means of discovering and forming an opinion of
the ideas and attitudes of their political leaders (see Castells
v. Spain, judgment of 23 April 1992, Series A no. 236,
§ 43). Journalistic freedom also covers possible recourse
to a degree of exaggeration, or even provocation (see Prager
and Oberschlick v. Austria, judgment of 26 April 1995,
Series A no. 313, p. 19, § 38).
- Although
freedom of expression may be subject to exceptions they “must
be narrowly interpreted” and the necessity for any restrictions
“must be convincingly established” (see the
above-mentioned Observer and Guardian judgment, p. 30, §
59).
Admittedly, it is in the first place for the national authorities to
assess whether there is a “pressing social need” for the
restriction and, in making their assessment, they enjoy a certain
margin of appreciation. In cases concerning the press, the national
margin of appreciation is circumscribed by the interest of democratic
society in ensuring and maintaining a free press. Similarly, that
interest will weigh heavily in the balance in determining, as
must be done under paragraph 2 of Article 10, whether the restriction
was proportionate to the legitimate aim pursued (see Worm
v. Austria, judgment of 29 August 1997, Reports 1997 V,
p. 1551, § 47, and Feldek v. Slovakia, no. 29032/95,
§ 78, ECHR 2001 VIII).
- One
factor of particular importance is the distinction between statements
of fact and value judgments. While the existence of facts can be
demonstrated, the truth of value judgments is not susceptible of
proof. A requirement to prove the truth of a value judgment is
impossible to fulfil and infringes freedom of opinion itself, which
is a fundamental part of the right secured by Article 10.
However, even where a statement amounts to a value judgment, the
proportionality of an interference may depend on whether there exists
a sufficient factual basis for the impugned statement, since even a
value judgment may be excessive where there is no factual basis to
support it (see Turhan v. Turkey, no. 48176/99, § 24,
19 May 2005, and Jerusalem v. Austria, no. 26958/95,
§ 43, ECHR 2001-II).
- The
Court's task in exercising its supervisory function is not to take
the place of the national authorities but rather to review under
Article 10 the decisions they have taken pursuant to their power of
appreciation. In so doing, the Court must look at the
“interference” complained of in the light of the case as
a whole and determine whether the reasons adduced by the
national authorities to justify it are “relevant and
sufficient”. In so doing, the Court has to satisfy
itself that the national authorities applied standards which were in
conformity with the principles embodied in Article 10 and,
moreover, that they based their decisions on an acceptable assessment
of the relevant facts (see Vogt v. Germany, judgment
of 26 September 1995, Series A no. 323, pp. 25-26, §
52, and Jerusalem v. Austria, cited above, § 33).
(b) Application of the general principles
to the present case
- The
Court notes that it is undisputed that the civil proceedings against
the applicants amounted to an “interference” with the
exercise of their right to freedom of expression. The Court also
finds, and the parties agreed on this point, that the interference
complained of was prescribed by law, namely Articles 23 and 24
of the Civil Code, and was intended to pursue a legitimate aim
referred to in Article 10 § 2 of the Convention, namely to
protect “the reputation or rights of others”. Thus
the only point at issue is whether the interference was
“necessary in a democratic society” to achieve such aims.
- At
the outset the Court notes that the plaintiff in the present case was
a private company which has a right to defend itself against
defamatory allegations. In addition to the public interest in open
debate about business practices, there is a competing interest in
protecting the commercial success and viability of companies, for the
benefit of shareholders and employees, but also for the wider
economic good. The State therefore enjoys a margin of appreciation as
to the means it provides under domestic law to enable a company
to challenge the truth, and limit the damage, of allegations which
risk harming its reputation (see Steel and Morris v. the United
Kingdom, no. 68416/01, § 94, ECHR 2005-II).
- However,
the Court considers that the facts of the case differ substantially
from the Steel and Morris case cited above, which concerned
serious defamatory allegations against McDonalds. The applicants in
the instant case had published in a magazine addressed to children
two cartoons accompanied by an article about an advertising campaign
launched by the company producing crisps. The domestic courts found
that they had breached the company's personal rights by employing in
one of the cartoons the word “muck” which had been
considered as aimed at discrediting, without justification, the
product of Star Foods.
- The
Court firstly notes that, in the domestic proceedings, and in their
submissions before the Court, the applicants argued that the
publication had contributed to a public debate on the question of the
ill-considered and harmful advertising campaign conducted by Star
Foods. The Court considers that the domestic courts did not give
sufficient attention to the applicants' argument that the satirical
cartoon had been a riposte to, in the applicants' view, an
unacceptable advertising campaign conducted by Star Foods and
targeted at young children. The campaign used slogans referring not
only to the Reksio character, but also to sexual and
cultural behaviour, in a manner scarcely appropriate for children –
the intended market segment. This clearly raises issues which are of
interest and importance for the public.
The
applicants' publication therefore concerned a sphere in which
restrictions on freedom of expression are to be strictly construed.
Accordingly, the Court must exercise caution when the measures taken
by the national authorities are such as to dissuade the press
from taking part in the discussion of matters of public interest
(see Standard Verlags GmbH v. Austria, no. 13071/03, §
49, 2 November 2006).
- Secondly,
the Court considers that the subject of the instant case is not
a defamatory statement of fact but a value judgment – as
submitted by the Government. Moreover, the publication in question
constituted a satirical denouncement of the company and its
advertising campaign in the form of a cartoon. The Court observes
that the cartoon in question was accompanied by a large heading
referring to “a shocking advertising campaign” and
an article on the second page reporting on the Star Foods campaign.
The cartoon itself had been obviously inspired by the company's
advertising campaign as it used the Reksio character and the
slogan which was to be found in the packets of crisps.
Taking
the above facts into account the Court finds that the applicants' aim
was not primarily to denigrate in the minds of readers the quality of
the crisps but to raise awareness of the type of slogans used by the
plaintiff company and the unacceptability of such tactics to generate
sales.
- The
Court finally considers that the domestic courts failed to have
regard to the fact that the press had a duty to impart information
and ideas on matters of public interest and in so doing to have
possible recourse to a degree of exaggeration or even provocation, or
in other words to make somewhat immoderate statements (see
Mamère v. France, no. 12697/03, § 25,
ECHR 2006-..., and Dąbrowski v. Poland, no. 18235/02,
§ 35, 19 December 2006).
The
wording employed by the applicants had been exaggerated; however,
they were reacting to slogans used in the plaintiff's advertising
campaign which also displayed a lack of sensitivity and understanding
for the age and vulnerability of the intended consumers of their
product, namely children. The Court thus considers that the style of
the applicants' expression was motivated by the type of
slogans to which they were reacting and, taking into account its
context, did not overstep the boundaries permissible to a free press.
In
sum, the Court is of the opinion that the reasons adduced
by the domestic courts cannot be regarded as relevant and
sufficient to justify the interference at issue.
- Regard
being had to the above considerations and in particular to the
interest of a democratic society in ensuring and maintaining the
freedom of the press on subjects of public interest, the Court
concludes that the authorities' reaction towards the applicants'
satirical cartoon was disproportionate to the legitimate aim pursued
and, accordingly, was not “necessary in a democratic
society” “for the protection of the rights of others”.
There
has accordingly been a violation of Article 10 of the Convention.
II. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- Article 41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
A. Damage
- The
first applicant claimed 24,000 Polish zlotys (PLN), equivalent
to 7,200 euros (EUR) at the date on which the claims were
submitted, in respect of pecuniary damage. This sum represented
PLN 2,500 and PLN 11,500 paid by the applicants to the plaintiff
as reimbursement of the costs of the proceedings and PLN 10,000 paid
to a charity - as ordered by the domestic courts. The first
applicant further claimed interest due on this amount.
As
regards non-pecuniary damage, the first applicant claimed EUR 10,000
as compensation for damage caused to his good name as a reliable
publisher given the publicly made allegations that he lacked
professionalism and diligence.
- The Government submitted that the final judgment in
this case was delivered on 21 March 2001 and the State could not be
held responsible for paying interest during a subsequent period of
examination of the case by the Court. With regard to non-pecuniary
damage, the Government argued that the sum claimed by the applicant
was excessive. They invited the Court to rule that the finding
of a violation constituted in itself sufficient just satisfaction for
the non-pecuniary damage sustained by the applicant.
- The
Court finds that in the circumstances of the case there is a causal
link between the violation found and the alleged pecuniary damage as
the first applicant referred to the amount which he was ordered to
pay by the domestic courts (see Busuioc v. Moldova, no.
61513/00, § 101, 21 December 2004 and Kulis,
cited above, § 59). The Court awards the first applicant the sum
claimed in full, that is EUR 7,200.
- The
Court also accepts that the first applicant also suffered
non pecuniary damage which is not sufficiently compensated by
the finding of a violation of the Convention. Making its assessment
on an equitable basis, the Court awards the first applicant EUR 3,000
under this head.
B. Costs and expenses
- The
first applicant also claimed PLN 6,270, equivalent to EUR 1,900,
for the costs and expenses incurred before the domestic courts which
included PLN 1,400 for court fees at the cassation stage and PLN
4,870 for the legal representation of the applicants before the
domestic courts. He further claimed PLN 14,000, equivalent to EUR
4,200, for the costs of their representation before the Court.
- The
Government submitted that the costs and expenses should be awarded
only in so far as they had been necessarily incurred and
in a reasonable amount.
- According
to the Court's case-law, an applicant is entitled to the
reimbursement of costs and expenses only in so far as it has been
shown that these have been actually and necessarily incurred and were
reasonable as to quantum. In the present case, the Court notes that
the applicant sufficiently substantiated that these sums had been
actually and necessarily incurred by submitting relevant invoices and
other evidence. Regard being had to the information in its possession
and the above criteria, the Court allows the first applicant's claim
in full and awards him the sum of EUR 6,100 covering costs under all
heads.
C. Default interest
- The
Court considers it appropriate that the default interest should
be based on the marginal lending rate of the European Central
Bank, to which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Declares the application admissible;
- Holds that there has been a violation of Article
10 of the Convention;
- Holds
(a) that
the respondent State is to pay the first applicant, within three
months from the date on which the judgment becomes final
in accordance with Article 44 § 2 of the
Convention, the following amounts, to be converted into Polish zlotys
at the rate applicable at the date of settlement:
(i) EUR
7,200 (seven thousand two hundred euros), plus any tax that may be
chargeable, in respect of pecuniary damage;
(ii) EUR
3,000 (three thousand euros), plus any tax that may be chargeable,
in respect of non-pecuniary damage;
(iii) EUR
6,100 (six thousand one hundred euros), plus any tax that may be
chargeable to the first applicant, in respect of costs and expenses;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amounts at a rate
equal to the marginal lending rate of the European Central Bank
during the default period plus three percentage points;
- Dismisses the remainder of the first applicant's
claim for just satisfaction.
Done in English, and notified in writing on 6 October 2009, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Fatoş Aracı Nicolas Bratza
Deputy Registrar President
