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FOURTH
SECTION
CASE OF KANIA AND KITTEL v. POLAND
(Application
no. 35105/04)
JUDGMENT
STRASBOURG
21 June
2011
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 Kania and Kittel v.
Poland,
The
European Court of Human Rights (Fourth Section), sitting as a Chamber
composed of:
Nicolas Bratza, President,
Lech
Garlicki,
Ljiljana Mijović,
Sverre Erik
Jebens,
Päivi Hirvelä,
Ledi
Bianku,
Zdravka Kalaydjieva, judges,
and
Lawrence Early, Section
Registrar,
Having
deliberated in private on 31 May 2011,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 35105/04) 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, Ms
Dorota Kania and Mr Bertold Knittel (“the applicants”),
on 20 August 2004
- The
applicants were represented by Mr G. Rybicki, a lawyer practising in
Warsaw. The Polish Government (“the Government”) were
represented by their Agent, Mr J. Wołąsiewicz, of the
Ministry of Foreign Affairs.
- The
applicants alleged that the proceedings brought against them under
the relevant provisions of the Civil Code had infringed their right
to freedom of expression under Article 10 of the Convention.
- On
7 June 2010 the President of the Fourth Section decided to give
notice of the application to the Government.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- On
23 August 1997 the daily newspaper Super Express published a
number of articles written by the applicants.
On
the cover page the newspaper published a title, covering nearly half
of the page. It read “The Warsaw prosecuting authorities
confirm: the Minister took” (“Warszawska prokuratura
ustaliła: Minister wziął”), and
underneath there was a photograph of a Mitsubishi Pajero with
information that the price of the most expensive version was over
100,000 United States dollars (USD) and then a paragraph stating
that Minister M.S., who was at that time the head of the National
Security Office, had accepted such a car as a gift from the
businessman W.W.
The
paragraph read:
Minister M.S., the Head of the National Security Office,
received from businessman W.W. a luxury car. The case came to light
because the Mitsubishi Pajero, worth over 100,000 USD, was
[subsequently] stolen. The head of the Mokotów prosecutor’s
office, Z Ż., has confirmed that M.S. had been “using”
that car. Minister [M.]S. did not want to talk to us about the car
from the businessman.”
On
the same front page the editor published a note, accompanied by a
photograph of M.S.:
“Sir, as you have refused to give us an interview
about the car which you received from W.W., you are requested, in
accordance with the Press Act, to answer the following questions: 1.
Why did you accept a gift from W.W. in the form of a luxury car? 2.
For how long did you use it? 3. Do you think it is correct for a
State agent to accept for use a car owned by a businessman? 4. Were
you not afraid that accepting that gift amounted to contracting a
debt towards him which you would be obliged to pay back in the
future?”
On
the third page an article signed by both applicants was published,
entitled “S. used” (“S. używał”).
Its leading paragraph read:
“The presidential minister and Head of the
National Security Office does not want, at least for the time being,
to explain why he has accepted an expensive car from a Polish
businessman with a Swedish passport.
The
article went on:
“W.W., a well-to-do businessman with a Swedish
passport, is the official owner of a car which was stolen from S. ...
He has extensive contacts with politicians. He emphasises his close
relationship with the President, Aleksander Kwaśniewski. ...
On 4 February the Minister’s driver was driving
the car to have it washed. When he stopped at traffic lights at
Ursynowska Street in Warsaw, the car door was opened by a masked man
who hit the driver in the face with a pistol he was holding and threw
him out of the car onto the tarmac. Then he drove away, the tyres
screeching.
The Warsaw prosecuting office started an investigation.
Witnesses have stated that M.S. had used the Mitsubishi
– prosecutor Z. Z. has told us: ‘We discontinued the
investigation in April as we could not identify the perpetrator.’
When Super Express spoke with him, W.W. lied. He
tried to explain that he could not remember events which had taken
place several months ago and told us that M. S. had never so much as
sat in that car.
‘It was the driver who was my friend. And I did
not know that he worked as [M.]S.’s driver’, he said.
‘[M.]S. himself never set foot in that car. ... ‘I don’t
remember what the car’s documents stated’, he added, ‘I
have no more time to talk’.
M.S. told us, via his secretary, that he did not have
anything to say about the Mitsubishi.”
- On
29 September 1997 M.S. brought a civil action in the Warsaw Regional
Court requesting legal protection of his personal rights. He
requested that the defendants be ordered to cease publishing
allegations that the plaintiff had accepted an expensive car as a
gift, that the newspaper publish an apology, and that damages of
PLN 300.000 be awarded to him, which he undertook to pay to a
charity.
- On
23 February 2001 the Warsaw Regional Court partly
allowed the plaintiff’s claim. It ordered the
applicants and the editor in chief to publish an apology on
the cover page of their newspaper for having published the untrue
information that the plaintiff had accepted an expensive gift, which
was to be worded as follows:
“The editors and authors of the articles entitled
“[t]he Minister took” and “[M.]S. remains silent”
apologise for publishing the untrue information that he had accepted
an expensive car as a gift”.
It
further determined the exact size of the apology. The court also
ordered the applicants to pay, jointly with the newspaper’s
publisher and the editor in chief, 10,000 Polish zlotys (PLN) as
compensation for the non pecuniary damage he had suffered. The
defendants were also ordered to pay, jointly, PLN 1,600 in court
fees.
- During
the proceedings the court questioned the applicants and the
plaintiff. The court heard W.W. and D.Z., who had been driving the
car on the day of the theft, as witnesses. The court had regard to
the case file of the investigation into the theft of the car which
had been conducted by the Warsaw-Mokotów District Prosecutor;
to an authorisation to use the car from 15 January until 13 March
1997 which W.W. had drawn up for the plaintiff; and to a car
insurance policy which he had had taken out in the plaintiff’s
name for that period.
- The
court found that W.W. and the plaintiff had planned to go to Austria
together for a skiing holiday. As W.W. had had to fly to the US for
business purposes shortly before the holiday, it had been agreed that
the plaintiff would take his car and drive it to Vienna where they
would meet. W.W. had arranged for insurance for the plaintiff and
prepared a document to the effect that he was authorised to use the
car from 15 January to 15 March 1997. The plaintiff had taken
the car from W.W. at the beginning of February. Subsequently, on 4
February 1997, when the plaintiff’s driver had been driving the
car to have it washed, he had been attacked at traffic lights and the
car had been stolen from him. An investigation concerning the theft
was subsequently instituted by the District Prosecutor.
- The
court noted the steps which the applicants had taken when gathering
the material for the article. The first applicant had become aware of
the theft of the car in February 1997. On 6 February 1997 she had
published a short article about it. Later on she had contacted the
prosecuting authorities requesting information about the progress of
the investigation. She had also contacted the President’s
Chancellery, where the plaintiff was working at that time, and
requested to be given an interview concerning the theft. She was
informed that the plaintiff would not give an interview on that
subject.
In
July 1997 the second applicant had started working on the case. He
had interviewed W.W. and D.Z. The court noted that W.W. had given
very evasive answers to the questions.
- Nonetheless,
the court was of the view that the available evidence indicated that
the car had indeed been given to the plaintiff for use for a limited
period of time. There was no indication that the car had been
accepted as a gift. The relevant evidence given by the plaintiff,
W.W. and D.Z. was fully coherent.
- The
court therefore accepted that there was nothing to suggest that the
circumstances in which the plaintiff had come into the possession of
the car indicated corruption. The court emphasised that he should not
have avoided the journalists as it was his responsibility as a public
official to ensure that his acts were transparent. It also noted that
the newspaper had published the articles only after he had refused to
provide information concerning the car.
The
court accepted the defendants’ assertion that they had been
acting in the general interest and had wished to elucidate the
circumstances surrounding the use of the car by the plaintiff.
However, this motivation did not exempt them from the legal
obligation to respect personal rights. They were obliged to act with
diligence when gathering and publishing information.
The
court accepted that the defendants had complied with this obligation
when gathering material and information concerning the use of the
car. They had had recourse to all the relevant sources.
- However,
the court could not endorse the defendants’ conduct, having
regard, firstly, to the titles of the articles. The title on the
cover page, taking up almost half of it, insinuated that the
plaintiff had taken a bribe and that the Warsaw prosecuting
authorities had conducted an investigation in this regard. The
suggestion, obvious to any reader, was not borne out by the facts and
was not compatible with the information which the newspaper had
received from the prosecuting authorities or from any other source.
Secondly, the same suggestion was made in the questions published on
the first page. Neither the title nor the questions corresponded to
the actual content of the article concerning the car published on the
third page. This allegation, which had not been based on any facts,
had breached the plaintiff’s personal rights.
- The
court further considered that the amount of damages sought by the
plaintiff was clearly excessive. However, as his personal rights had
been breached, it considered that an amount of PLN 10,000 was
appropriate in the circumstances as it was more than merely symbolic.
- The
applicants appealed. They submitted that the court had wrongly found
that the contested articles had suggested that M.S. had accepted a
bribe and that the prosecuting authorities had conducted an
investigation into the matter. They further argued that the
first-instance judgment had breached Articles 54 and 61 of the
Constitution and Article 10 of the Convention. They averred that
the court had failed to take into consideration the standards set in
the Court’s case-law. They referred to the judgments given in
the cases of Jersild v. Denmark, 23 September 1994, Series A
no. 298, and Prager and Oberschlick v. Austria, 26 April
1995, Series A no. 313. As to the scope of the protection
afforded to the private lives of politicians, they invoked the
Court’s judgment in the case of Lingens v. Austria,
8 July 1986, Series A no. 103.
They
were further of the view that the court had erred in finding that
they had failed to act with diligence when formulating the title for
the article. It had clearly been formulated in a manner compatible
with journalistic freedom.
- On
13 November 2002 the Warsaw Court of Appeal dismissed the appeal. It
agreed with the first-instance court that the text published on the
cover page, including its title, had clearly suggested that the
plaintiff had been suspected of corruption, that the prosecuting
authorities had conducted an investigation concerning charges of
corruption, and that the charges had proved well-founded. The court’s
findings in this respect were correct: this was indeed an impression
which any reasonable reader might form, while it was clearly not
borne out by the facts as established by the applicants. Likewise,
the lower court’s conclusion that the text on the third page
did not balance the impact of the text on the front page was correct.
- The
appellate court accepted the applicants’ argument that they had
been motivated by the protection of the general interest and by their
obligation to inform the public of issues of such interest. It held
that they had exercised their freedom of expression protected by
Article 10 of the Convention. Under this provision, politicians
had to take into account that the limits of acceptable criticism were
wider in respect of their acts. However, this freedom was not
unlimited; it went hand-in-hand with certain obligations and
restrictions. It was for the purpose of the effective protection of
such rights that journalists were obliged to act with particular
diligence; journalistic freedom could not be seen as conferring on
journalists a right to act recklessly or arbitrarily. They had to
check the veracity of the information which they intended to publish.
- In
the present case the information on the front page insinuated not
only that the plaintiff had accepted the expensive car as a gift from
W.W., but also that the plaintiff had been suspected of taking
bribes, and that the prosecuting authorities had conducted an
investigation into the matter and found that suspicion well-founded.
That was not true. The conclusions of the lower court concerning the
possible assessment of the information published on the cover page
and the text on the third page by the readers were well-founded and
logical and had to be upheld.
- The
applicants appealed, essentially reiterating their arguments and
indicating that Article 10 of the Convention and the Court’s
case-law should be used as the frame of reference for the legal
assessment of the case.
- On
20 February 2004 the Supreme Court dismissed their cassation appeal,
essentially sharing the conclusions of the appellate court.
In so
far as the applicants complained that the appellate court had failed
to address their arguments based on the Court’s case-law
concerning Article 10 of the Convention, the Supreme Court
acknowledged that they were right to emphasise the importance of the
right to the freedom of expression in a democratic society as
interpreted by the Court. Any restrictions imposed on the exercise of
that right had to be closely scrutinised. It referred to the case-law
of the Court and reiterated that criticism in respect of politicians
and their views and actions was acceptable in the context of a
democratic society, even where it took the form of violent attacks,
exaggeration or even provocation. However, these principles had
always to be applied and fine-tuned in the context of concrete
factual circumstances. In the present case, the applicants’
interest in the circumstances of the case, given the public character
of the plaintiff’s function, was fully justified. Their
diligence in gathering relevant information was not open to any
criticism. It was only at the stage where they wrote and published
the articles concerned that they had demonstrated negligence. Nothing
in the material which they had gathered justified a conclusion that
the plaintiff had received the car as a gift. This insinuation,
placed on the first page of the newspaper, had clearly overstepped
the limits of acceptable journalistic exaggeration.
- The
Supreme Court further held that the newspaper’s editor-in-chief
could not be held responsible as at the time when the articles had
been published she had not been carrying out this function, and it
dismissed the claim in so far as it had been directed against her.
II. RELEVANT DOMESTIC LAW AND PRACTICE
- Article 14 of the Constitution, adopted in 1997,
provides as follows:
“The Republic of Poland shall ensure freedom of
the press and other means of social communication.”
- Article
54 of the Constitution reads:
“1. The freedom to express opinions and
to acquire and disseminate information shall be secured to everyone.
2. Preventive censorship of the means of
social communication and licensing of the press shall be forbidden.
Statutes may require that permits be sought and obtained for the
operation of a radio or television station.”
- Article
61 of the Constitution, in so far as relevant, provides:
“1. Each citizen shall have the right
to obtain information on the activities of organs of public authority
as well as persons discharging public functions. Such right shall
also include the obtaining of information on the activities of
self-governing economic or professional organs, and other persons or
organisational units, relating to the field in which they perform the
duties of public authorities and manage municipal assets or property
of the State Treasury.
2. The right to obtain information shall encompass the
right of access to documents and entry to sittings of collective
organs of public authority formed by universal suffrage, with the
opportunity to make sound and visual recordings.
3. Limitations upon the rights referred to in
paragraphs 1 and 2 above may be imposed by statute solely to protect
the freedoms and rights of other persons ... public order, security,
or important economic interests of the State.”
- Article
23 of the Civil Code contains a list of the rights referred to as
“personal” (dobra osobiste). It reads:
“The personal rights of an individual, such as, in
particular, the rights concerning 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 civil law regardless of the protection
enshrined in other legal provisions.”
- Article 24
of the Code provides for ways of redressing infringements of personal
rights. A person facing the threat of an infringement may demand that
the perpetrator desist from the wrongful activity, unless it is
lawful. 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 demand satisfaction from
him/her. If the infringement of a personal right causes financial
loss, damages may be sought before a civil court.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION
- The
applicants complained that the judgments given in the civil case
against them had breached their right to freedom of expression
guaranteed by 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.”
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. The parties’ arguments
- The
applicants submitted that at the relevant time the plaintiff had been
a politician, a person holding one of the highest and most
responsible positions in politics. It was therefore obvious that it
had been both a right and an obligation for the journalists to
investigate whether his use of a very expensive car owned by a third
party raised a suspicion of corruption. In order to justify their
judgments, the Polish courts referred only to part of the impugned
press article, namely the titles. As a result, the applicants had
been convicted on the basis of incomplete evidence, the courts having
failed to take into consideration the text of the article.
- The
applicants further submitted that Article 10 of the Convention
protected not only the substance of the ideas and information
expressed, but also the form in which they were conveyed.
Journalistic freedom also covered possible recourse to a degree of
exaggeration or even provocation. Freedom of expression applied not
only to views deemed harmless or neutral, but also those which
shocked, disturbed and offended. They referred to the Court’s
judgment in the case of Handyside v. the United Kingdom,
7 December 1976, Series A no. 24).
- In
the present case, the decisions of the domestic courts had to be seen
as having a chilling effect on the freedom of democratic debate, in
the context of which the transparency of politicians’ conduct
must take precedence over their right to respect for their private
lives.
- The
Government acknowledged that the decisions of the domestic courts
amounted to an interference with the applicants’ right to
freedom of expression. They were of the view that that the
interference was prescribed by law and pursued a legitimate aim. The
assertions made in the article concerned the conduct of a politician.
It was accepted in the Court’s case-law that the limits of
acceptable criticism were wider with regard to a politician than with
regard to a private individual. Where, as in the present case,
journalists considered that it was their duty to alert public opinion
to an important issue in the general interest, namely the alleged
acceptance of a bribe, they were under an obligation to provide a
sufficient factual basis for their allegations. The domestic courts
had accepted, having regard to the fact that the applicants referred
in their pleadings to their freedom of expression, that they had been
motivated by the protection of the general interest. Moreover, the
courts had focused on the essential aspect of the case, namely on the
allegations of corruption advanced by the applicants.
- The
Government further argued that the first-instance court had heard
evidence from all the persons involved, namely, the applicants
themselves, the plaintiff, and witnesses D.Z. and W.W. They had
analysed the terms used in the articles concerned and also the
case-file of the investigation concerning the theft of the car.
- The
Government concluded that the domestic authorities, when justifying
the interference, had relied on grounds which were both relevant and
sufficient.
2. The Court’s assessment
- The
Court reiterates that freedom of expression 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 (see Lingens v. Austria, 8 July
1986, § 41, Series A no. 103).
In
this context, the safeguards to be afforded to the press are of
particular importance (Janowski v. Poland [GC],
no. 25716/94, § 30, ECHR 1999 I). Not only
does the press have the task of imparting information and ideas; the
public also has a right to receive them. Were it otherwise, the press
would be unable to play its vital role of “public watchdog”
in imparting information of serious public concern (see, among other
authorities, Observer and Guardian v. the United
Kingdom, 26 November 1991, § 59, Series A no. 216,
and Gawęda v. Poland, no. 26229/95, § 34,
ECHR 2002 II). Although the press must not overstep certain
bounds, in particular in respect of the reputation and rights of
others and the need to prevent the disclosure of confidential
information, its duty is nevertheless to impart information and ideas
on all matters of public interest (see Jersild v. Denmark,
23 September 1994, § 31, Series A no. 298, and De
Haes and Gijsels v. Belgium, 24 February 1997, § 37,
Reports of Judgments and decisions 1997 I).
- Nonetheless, Article 10 of the Convention does not
guarantee wholly unrestricted freedom of expression even with respect
to press coverage of matters of serious public concern. Under the
terms of paragraph 2 of this provision,
freedom
of expression
carries with it “duties and responsibilities” which also
apply to the media, even with respect to matters of serious public
concern. By reason of these “duties and responsibilities”,
the safeguard afforded by Article 10 to journalists in relation to
reporting on issues of general interest is subject to the proviso
that they are acting in good faith in order to provide accurate and
reliable information in accordance with the ethics of journalism
(see, for example, Goodwin v. the United Kingdom,
27 March 1996, § 39, Reports 1996 II,;
Fressoz and Roire v. France [GC], no. 29183/95,
§ 54, ECHR 1999 I; Pedersen and Baadsgaard
v. Denmark [GC], no. 49017/99, § 78, ECHR
2004-XI; Lindon, Otchakovsky-Laurens and July v. France [GC],
nos. 21279/02 and 36448/02, § 67, ECHR 2007 ...).
- The
Court observes that in the present case it is not in dispute between
the parties that the domestic courts’ decisions complained of
by the applicants amounted to “interference” with the
exercise of their right to freedom of expression.
- The
Court also finds 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”.
- Hence,
the only point at issue is whether the interference was “necessary
in a democratic society” to achieve that aim.
- The
test of “necessity in a democratic society” requires the
Court to determine whether the “interference” complained
of corresponded to a “pressing social need”, whether it
was proportionate to the legitimate aim pursued and whether the
reasons given by the national authorities to justify it are relevant
and sufficient (see, among many other authorities, Sunday Times
v. the United Kingdom (no. 1), 26 April
1979, § 62, Series A no. 30; and Skałka
v. Poland, no. 43425/98, § 35, 27 May
2003).
In assessing whether such a “need” exists and what
measures should be adopted to deal with it, the national authorities
are left a certain margin of appreciation. This power of appreciation
is not, however, unlimited but goes hand in hand with European
supervision by the Court, whose task it is to give a final ruling on
whether a restriction is reconcilable with freedom of expression as
protected by Article 10. In sum, 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, in the light
of the case as a whole, the decisions they have taken pursuant to
their power of appreciation (see, among many other authorities,
Fressoz and Roire v. France, cited above, § 45).
- The
Court’s task, in exercising its supervisory jurisdiction, is
not limited to ascertaining whether the respondent State exercised
its discretion reasonably, carefully and in good faith; what the
Court has to do is to determine whether the reasons adduced by the
national authorities to justify the interference are “relevant
and sufficient” and whether it was “proportionate to the
legitimate aim pursued”. In doing so, 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 relied on an acceptable assessment of the relevant facts
(see, among many other authorities, Hertel v. Switzerland,
25 August 1998, § 46, Reports 1998 VI;
Pedersen and Baadsgaard, cited above, §§ 68 71;
Steel and Morris v. the United Kingdom,
no. 68416/01, § 87, ECHR 2005 II; and
Mamère v. France, no. 12697/03, § 19,
ECHR 2006 ...; ). The Court must look at the interference
with the applicant’s right to freedom of expression in the
light of the case as a whole, including the statements concerned and
the context in which they were made and also the particular
circumstances of those involved (see Feldek v. Slovakia,
no. 29032/95, § 77, ECHR 2001 VIII).
- In
the instant case the impugned articles and their titles concerned
allegations of improper conduct levelled against the plaintiff, a
well known politician who was at the material time Head of the
National Security Office.
- In
this connection, the Court reiterates that the limits of acceptable
criticism are wider with regard to a politician than with regard to a
private individual. Unlike the latter, the former inevitably and
knowingly lays himself open to close scrutiny of his every word and
deed by journalists and the public at large. Therefore, such persons
must display a greater degree of tolerance (see, for example, Incal
v. Turkey, 9 June 1998, § 54,
Reports 1998 IV, and Dąbrowski v. Poland,
no. 18235/02, § 28, 19 December 2006).
Nonetheless, it does not follow from this that politicians should not
be given an opportunity to defend themselves when they consider that
publications about them are erroneous and capable of misleading
public opinion. In the Court’s view, in such cases a fair
balance between the privileged position of the press in exercising
its freedom of expression, and the politician’s right to
protect his or her reputation is called for (see Sanocki
v. Poland, no. 28949/03, §§ 61-62, 17 July
2007).
- In
the present case the allegations made against the plaintiff on the
first page of the newspaper were that he had accepted an expensive
car as a gift from a businessman. The domestic courts accepted that
the facts as they became initially known to the applicants were
capable of raising a legitimate concern of possible corruption.
Hence, the Court considers that the subject-matter of the articles
can be said to concern public interest issues. The impugned
article did not amount to a gratuitous personal attack.
Moreover,
the courts found that the applicants, when gathering information for
their article, had acted with the requisite diligence and that they
had had at their disposal sufficient and reliable information for
concluding that the plaintiff had indeed been using a car owned by a
third party.
- However,
as regards the reasons cited by the courts to justify the
interference with the applicants’ right to freedom of
expression, the courts were of the view that the title and questions
on the first page strongly suggested that the applicants had taken a
bribe and that an investigation into the matter had been conducted by
the prosecuting authorities. The Court notes that it has not been
argued, let alone proved, either in the domestic proceedings or
before the Court, that that was indeed the case.
Moreover,
the Court notes that when the impugned article was published, the
applicants already knew that only an investigation concerning the
theft of the car had been conducted as they had previously contacted
the prosecuting authorities. Hence, the suggestion that suspicions of
corruption on S.’s part were investigated by the prosecution
was incorrect and the applicants were aware of it.
- The
first instance court also criticised the fact that the
allegation of corruption made on the cover page had corresponded
neither to the actual content of the information on the situation
published on the same page nor to the article about the plaintiff
using a car published on the third page. The courts had examined the
way in which the plaintiff had come into the possession of the car,
namely that it had been lent to him for a limited period of time and
with the purpose of his taking it to Vienna where he was to meet the
owner for a skiing holiday. When doing so, the courts had had regard
to the evidence submitted to them during the proceedings, namely the
owner’s testimony, the insurance which the owner had arranged
for the plaintiff and the authorisation for him to use the car from
15 January to 15 March 1997.
The
Court notes that the applicants did not submit any evidence, either
to the domestic courts or in the proceedings before the Court,
capable of showing or even suggesting that the plaintiff had come
into the possession of that car in circumstances different than those
established by the domestic courts.
- It is true that, when taking part in a public debate
on a matter of general concern – like the applicants in the
present case – an individual is allowed to have recourse to a
degree of exaggeration or even provocation, or in other words to make
somewhat immoderate statements (see Mamère, cited
above, § 25). However, the Court considers that there is a
difference between acceptable exaggeration or provocation, or
somewhat immoderate statements, and the distortion of facts known to
the journalists at the time of publication. In the present case, the
title and questions criticised by the domestic courts cannot be said
to amount to an acceptable journalistic technique consisting of
giving a sensationalist title or leading paragraph to a text
providing a reader with objective information. Given the discrepancy
between the text published on the third page and the impugned title
and questions published on the cover page, the Court is of the view
that they seriously – and to the plaintiff’s detriment –
misrepresented the reality as established by the applicants.
- In
the light of the above, the Court accepts the conclusion of the
domestic courts that the applicants, by publishing a title and
information implying corruption on the plaintiff’s part without
having shown that there was a solid factual basis for such a serious
allegation had distorted the facts known to them.
- The
Court further notes that in its judgment the appellate court examined
the applicants’ arguments in which they had relied on
Article 10 of the Convention. It observed that they had indeed
exercised their freedom of expression protected by that provision,
but noted that this freedom was not unlimited; the appellate court
observed that it went hand in hand with certain obligations
and restrictions, in particular with regard to the protection of the
rights of third parties. It was for the purpose of the effective
protection of such rights that journalists were obliged to act with
particular diligence; journalistic freedom could not be seen as
conferring on journalists a right to act arbitrarily. It also
reiterated that the plaintiff had erred in that he had chosen not to
give, early on, exhaustive information on the circumstances
surrounding the use of the car.
The
Court further notes that the Supreme Court emphasised the importance
of the Court’s case-law in the context of the right to freedom
of expression and reiterated that criticism in respect of politicians
and their views was acceptable in the context of a democratic
society,
The
Court is therefore satisfied that the domestic authorities examined
the applicants’ case also from the standpoint of Article 10
of the Convention.
- The
Court concludes that the domestic authorities, when justifying the
interference at issue in the present case, relied on grounds which
were both relevant and sufficient.
- The
Court further observes that the applicants were found only to be
civilly liable: no criminal proceedings for a public indictment were
instituted or even envisaged against them (compare and contrast
Kurłowicz v. Poland, no. 41029/06, § 54,
22 June 2010, and Długołęcki v. Poland,
no. 23806/03, § 47, 24 February 2009).
- The Court further notes that the applicants were
ordered to arrange for the publication of an apology in the press for
having published inaccurate information of a defamatory character.
The correction ordered was neutrally worded, no bad faith or lack of
diligence on the applicants’ part being implied.
- The Court observes that the courts awarded damages to
the plaintiff in the amount of PLN 10,000, having noted that the
damages of PLN 330,000 sought would have been manifestly
excessive. It notes that this amount is equivalent to approximately
3% of the amount which the applicant claimed and that it was not
argued, let alone shown, that an award of that amount would have had
any serious impact on the financial standing of the newspaper
concerned. It therefore considers that the requirement of
proportionality between damages for defamation and the injury
suffered which was set out in Tolstoy Miloslavsky v. the
United Kingdom (13 July 1995, Series A no. 316-B,
§ 49) has been respected.
- The Court is therefore satisfied that the authorities
struck a fair balance between the interests of, on the one hand, the
protection of the plaintiff’s reputation and, on the other, the
applicants’ right to exercise their freedom of expression where
issues of public interest are concerned.
- Having
regard to the circumstances of the case seen as a whole, the Court is
of the view that the interference complained of may be regarded as
“necessary in democratic society” within the meaning of
paragraph 2 of Article 10 of the Convention.
- There
has accordingly been no violation of that provision.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Declares the application admissible;
- Holds that there has been no violation of
Article 10 of the Convention.
Done in English, and notified in writing on 21 June 2011, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Lawrence Early Nicolas Bratza
Registrar President
