In the case of Ziembiński v. Poland,
The European Court of Human Rights (Fourth Section), sitting as
a Chamber composed of:
David ThórBjörgvinsson, President,
LechGarlicki,
PäiviHirvelä,
GeorgeNicolaou,
ZdravkaKalaydjieva,
NebojšaVučinić,
Vincent A. De Gaetano, judges,
andFatoş Aracı, Deputy Section
Registrar,
Having deliberated in private on 3 July 2012,
Delivers the following judgment, which was adopted on that
date:
PROCEDURE
The case originated in an application (no.
46712/06) 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 a Polish national, Mr Maciej Ziembiński (“the
applicant”), on 13 November 2006.
The applicant was represented by Ms K.
Zakrzewska, a lawyer practising in Radomsko. The Polish Government (“the
Government”) were represented by their Agent, Mr J. Wołąsiewicz
of the Ministry of Foreign Affairs.
The applicant alleged, in particular, that his
conviction for defamation had been in breach of his right to freedom of
expression.
On 28 March 2011the application was communicated
to the Government. It was also decided to rule on the admissibility and merits
of the application at the same time (Article 29 § 1).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The applicant was born in 1944 and lives in
Kłomnice.
He is the proprietor, editor-in-chief and
journalist of a local weekly Komu i Czemu, published in the Radomsko and
Bełchatów Districts.
At the end of May 2005 M.Dz., a local businessman
providing services to a district hospital, visited M.D., the district mayor (starosta),
to complain about D.K., the director of the hospital. It appears that the
hospital owed some money to the businessman. M.Dz. recorded the conversation
and the following day passed it on to the applicant.
On 2 June 2005 the applicant wrote to the
district mayor and asked him to explain why he had delayed informing the
prosecution authorities about the alleged corruption at the district hospital.
In reaction to the letter, the district mayor summoned D.K. to respond to those
allegations. He also sent a copy of the applicant’s letter to the prosecution
service asking for the matter to be examined. In his letter to the prosecution
service, the district mayor stated that the applicant’s allegations were
insinuations aimed at undermining the public trust in him. A copy of this
letter was sent to the applicant.
On 6 June 2005 M.Dz. notified a local member of
parliament(“MP”) that the director of the hospital had received bribes from
M.Dz.He stated that his recent conversation with the district mayor indicated
that the latter had some knowledge about the bribe-taking. On 14 June 2005 the
MP relayed this information to the Minister of Internal Affairs and
Administration. Subsequently, the information was transmitted to the Ministry
of Justice and then, in turn, to the Piotrków Trybunalski Regional Prosecutor’s
Office.
In the article “D.K. took bribes” published in
issue no. 23 (8-14 June 2005), the applicant stated that “the hospital
director was being protected by the district mayor who knew that the
subordinate director had taken bribes”. In the article “Corruption of Madame
Director” published in issue no. 24 (15-21 June 2005) the applicant wrote
that the district mayor had known that D.K. was corrupt but had not notified
the prosecution authorities. The same allegation was made in the article published
in issue no. 25 (22‑28 June 2005). In the article “Young
prosecutor examines Deszcz [the district mayor]” published in issue no. 28 the
applicant stated that “the district mayor is obviously fibbing, because he
received information that the director took [bribes] from at least two
sources”.
On an unspecified date in 2005 the district
mayor lodged a private bill of indictment against the applicant with the
Piotrków Trybunalski District Court. He accused the applicant of defamation
committed through the mass media under Article 212 § 2 of the Criminal Code.
The bill of indictment related to two separate
charges. The first concerned an article entitled “Hey those district roads”
published in issue no. 1 of 2005 in which the applicant had discussed
mismanagement of road works in the district. The second charge concerned four
articles published by the weekly in June and July 2005 in which the applicant
alleged that the district mayor had known that D.K. was corrupt but had failed
to inform the prosecution service. The
district mayor claimed that the impugned articles lowered his standing in the
eyes of the public and undermined the public confidence necessary for the
discharge of his duties.
On 8 February 2006 the Piotrków Trybunalski
District Court gave judgment. It acquitted the applicant of the first charge
and convicted him of defamation committed through the mass media in respect of
the second charge. The District Court held that the applicant had wrongly alleged
in his articles that the district mayor had known that D.K. accepted bribes but
had not informed the police about it, despite having been under a duty to do
so. Thus, the applicant had lowered D.K.’s public standing and undermined the
public confidence necessary for the discharge of his duties. The District Court
sentenced the applicant to a fine of 10,000 Polish zlotys (PLN;
2,600 euros (EUR)). It further ordered him to pay the private prosecutor’s
costs (PLN 300; EUR 80) and the costs of the State Treasury (PLN 1,000; EUR 260).
When examining the first charge against the
applicant, the trial court observed that the contours of the offence of
defamation specified in Article 212 of the Criminal Code were delimited on
one hand by the protection of reputation and dignity of a person and, on the
other, by so‑called legitimate criticism (dozwolona krytyka) which
derived from Article 54 of the Constitution. It noted that in accordance with
the Strasbourg case-law political or public activity inevitably resulted in subjecting
officials to the judgment of the public opinion. Persons holding important
offices were thus required to show a higher degree of tolerance to criticism.
In respect of the second charge, the trial court
heard evidence from the applicant, the district mayor, M.Dz., D.K.and G.D.
(spokesperson of the district mayor). It further heard the recording of the
conversation between the district mayor and M.Dz.
The District Court observed that the applicant
and the district mayor had once been good colleagues; however their relations
had deteriorated since M.D.’s election as district mayor in 2002. From then
onwards the applicant’s newspaper had begun publishing articles virulently
criticising the district mayor and his staff.
The court established that the local businessman
M.Dz., who provided services to the local hospital and was dissatisfied with
his cooperation with the hospital director (D.K.), had informed the district
mayor that D.K. had been taking bribes. M.Dz. had recorded his conversation
with the district mayor. Subsequently, he had provided the applicant with the
content of the recording and informed him that he had given bribes to D.K.
The court found that the applicant had alleged
in a series of articles published between 15 June and 19 July 2005 that the
district mayor had covered up the corruption affair, without having verified
the information received from M.Dz. and disregarding the actual content of the
recording.
The court further established that the
applicant, when publishing a series of articles about the alleged
corruption affair, had relied exclusively on the recorded conversation between
the district mayor and M.Dz. It noted that neither the recording nor the
statements of M.Dz. had confirmed the allegation that the district mayor had
known about bribe-taking in the hospital, and thus the applicant’s assertions had
been untrue. Even if the district mayor had some misgivings about the
management of the hospital it could not be inferred from that that he had
specific knowledge about the corruption. The trial court noted that allegations
of covering-up corruption were of immense gravity and that the applicant had
published them without having them verified. It underlined that shortly after
having received the applicant’s letter of 2 June 2005 the district mayor
referred the matter of corruption allegations to the prosecution service. In
the court’s view, the applicant had flagrantly breached the journalistic
principles of diligence and objectivity. The court further noted that in none
of the impugned articles had the applicant referred to the uncertain nature of
the presented information. The applicant, as an experienced journalist, should
have been particularly cautious with the information received from the
disgruntled businessman as he had been aware of a sharp conflict between him
and the hospital management. However, he had failed to display particular
diligence and had exploited that information for sensational purposes in making
the district mayor and his alleged cover-up of the corruption the central part
of his articles. The trial court referred to section 12 of the Press Act which
obliged journalists to display particular diligence in gathering and using the
information, and, in particular, to verify the truthfulness of obtained
information.
The District Court held, inter alia, as follows:
“There is no doubt that by imparting information clearly
presupposing that M.D. [the district mayor] had allegedly covered up the
corruption affair [the applicant] not only did not demonstrate the requisite
diligence but in general did not take the trouble to confirm and verify in any
way the information he had received. Without having regard to the gravity of
the allegations made against M.D., the applicant hastily used the words of his
informant for the purposes of settling his scores with M.D. ... The articles
discrediting M.D. did not serve anything but the personal satisfaction of [the
applicant], and the concern for the respect of law in the local hospital
appeared to be of marginal importance.
Having read the series of the above-mentioned articles it is
difficult to escape the conclusion that the attention of the applicant was
focused on damaging the reputation of the district mayor, while the hospital
director D.K. was put on the sidelines. ... Besides, these actions constitute
not the only but certainly the most far-reaching element of the personal war
with M.D. waged in the weekly Komu i czemu.
Defamation committed with the knowledge that information and
opinions concerning the behaviour or characteristics of another person are false
never serve to defend a justifiable public interest.
Such actions do not benefit from the protection granted to
freedom of expression and the right to criticise under Article 31 § 3 of the
Constitution or Article 10 § 2 of the Convention.
The real effect of the applicant’s publication cannot be
assessed in isolation from the public office held by M.D. It is obvious that
the office of the district mayor must be based on public trust and respect.
Imparting by means of mass communication information about the alleged
participation of the district mayor in the cover-up of a corruption scandal
does not enhance his popularity. It risks not only the loss of the office, but
also lowers his public standing creating an atmosphere of scandal and suspicion.
... By attributing to M.D. behaviour constituting an offence and doing so by
means of mass communication, M. Ziembiński made out all the statutory
features of the offence specified in Article 212 § 2 of the Criminal Code.”
The trial court noted that the applicant
published four separate articles containing defamatory statements in respect of
the district mayor within the period of a few weeks. Those statements fell
outside the limits of permissible criticism referred to in Article 213 § 2 of
the Criminal Code since they had been untrue.
The trial court considered that the degree of
the applicant’s guilt was significant and for that reason the proceedings could
not have been conditionally discontinued. As regards the sentence, the court
found that, having regard to the circumstances of the case, a fine would be the
most appropriate penalty. It imposed a fine of PLN 10,000, which it considered
proportionate to the gravity of the offence, the degree of the applicant’s
guilt and his financial standing which was beyond average.With regard to the
latter, it had regard to the profits from the ownership of one of the most
widely read newspapers in the region. As regards other relevant factors, the
court noted that the applicant had deliberately infringed the district mayor’s
reputation and had been motivated by personal animosity. At variance with the
professional and deontological standards, he failed to respect the requirement
of particular diligence when using information at his disposal. The trial court
took further into account that the applicant had not in any way recognised that
he had acted inappropriately.
The applicant
appealed. He contested the factual findings of the first-instance court, in
particular that the recorded conversation between M.Dz. and the district mayorhad
constituted the only source of information about the bribe-taking. He further
alleged that the first-instance court had erroneously assessed the evidence.
On 23 May 2006 the Piotrków Trybunalski Regional
Court upheld the first-instance judgment and found the applicant’s appeal
manifestly ill‑founded. It ordered him to pay costs of PLN 1,000 for the
appeal proceedings.
The Regional Court endorsed the lower court’s
findings. It noted that M.Dz. had been in conflict with the director of the
hospital which was related to unpaid invoices of his company. In the past he
had frequently complained to the district mayor about the director of the
hospital.
The Regional Courtheld that the recorded
conversation and information passed orally by M.Dz. to the applicant had
constituted the only basis of the allegations made against the district mayor.
According to the court, there was not a single statement of the district mayor
in that conversation indicating that he had been aware of the alleged
corruption of the director of the hospital. The allegations made by the
applicant had been based on isolated parts of the conversation which were taken
out of context. The Regional Court also noted that the applicant had not sought
comments from D.K. At the time of the publication the applicant had not
disposed of any information corroborating the alleged cover-up of the
corruption. Nor had such information been disclosed during the trial. The Regional Court, having regard to the evidence heard by the trial court, found that the district
mayor had learnt about the alleged corruption in the local hospital from his
conversation with M.Dz. at the end of May 2005 and then from the applicant’s
letter of 2 June 2005. It accordingly confirmed that the allegations raised by
the applicant in his articles had proved to be untrue.
Referring to the case-law of the Strasbourg Court, it recalled that the limits of acceptable criticism were wider with regard
to politicians than with regard to private individuals. However, it did not
follow from that that the insulting of a politician could go unpunished.
The judgment was served on the applicant on 13
June 2006.
II. RELEVANT DOMESTIC LAW AND PRACTICE
A. Constitutional provisions
Article 14 provides as follows:
“The Republic of Poland shall ensure freedom of the press and
other means of social communication.”
Article 31 § 3 of the Constitution, which lays down a general
prohibition on disproportionate limitations on constitutional rights and
freedoms (the principle of proportionality), provides:
“Any limitation upon the exercise of constitutional freedoms
and rights may be imposed only by statute, and only when necessary in a
democratic State for the protection of its security or public order, or to
protect the natural environment, health or public morals, or the freedoms and
rights of other persons. Such limitations shall not violate the essence of
freedoms and rights.”
Article 54 § 1 of the Constitution guarantees freedom of
expression. It states, in so far as relevant:
“Everyone shall be guaranteed freedom to express opinions and
to acquire and to disseminate information.”
B. Relevant provisions of the Criminal Code
Article 212 provides in so far as relevant:
Ҥ 1. Anyone who imputes to another person, a
group of persons, an institution, a legal person or an organisation without
legal personality, such behaviour or characteristics as may lower this person,
group or entity in public opinion or undermine public confidence in their
capacity necessary for a given position, occupation or type of activity, shall
be liable to a fine, a restriction of liberty or imprisonment not exceeding one
year.
§ 2. If the perpetrator commits the act
described in paragraph 1 through the mass media he shall be liable to a fine, a
restriction of liberty or imprisonment not exceeding two years.”
Article 213 provides as follows:
“§ 1. The offence specified in Article 212 § 1
is not committed, if the allegation made in public is true.
§ 2. Whoever raises or publicises a true
allegation in defence of a justifiable public interest shall be deemed not to
have committed the offence specified in Article 212 §§ 1 or 2; if the
allegation regards private or family life evidence of truthfulness shall be
admitted only when it serves to prevent a danger to someone’s life or to
prevent the demoralisation of a minor.”
C. The Constitutional
Court’s judgment of 30 October 2006, case no. P 10/06
32. On 30 October
2006 the Constitutional Court, ruling on a legal question referred to it by the
Gdańsk District Court, declared Article 212 §§ 1 and 2 of the
Polish Criminal Code compatible with Articles 14 and 54 § 1 of the
Constitution read in conjunction with Article 31 § 3.
The Constitutional Court found
that in some circumstances the protection of rights and freedoms like dignity,
good name and privacy might prevail over the protection of freedom of
expression. The Court further found that there was no basis to assume that
protection of personal rights through the civil law alone would be equally
efficient as criminal law. Protection
of personal rights by means of criminal law did not by itself infringe the
relevant provisions of the Constitution.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 10 OF THE
CONVENTION
The applicant complained that there had been a
violation of his right to freedom of expression on account of his conviction
and punishment for defamation. He relied on 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 this complaint is not
manifestly ill-founded within the meaning of Article 35 § 3 (a) 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 applicant’s submissions
The applicantaverred that he had not harmed the good
name or violated the rights of others. He had not even put in his article the
initials of the officials of the Radomsko District Office. He claimed to have observed
the principle of accuracy required of the journalists under the Press Act.
Referring to the Constitutional Court’s judgment of 12 May 2008, the applicant
argued that a person accused of defamation should not be held liable if she or
he had complied with the standards of accuracy and reliability while gathering
and verifying information, even if eventually the allegations proved to be
false.
Not only the Press Act but also the Constitution
enabled the free and independent media to criticise and assess phenomena which
occurred in the exercise of power by the local government. Public figures had
to accept the risk of being exposed to more severe assessment by the public
opinion and that the limits of acceptable criticism with regard to them were
wider. In the present case, he had not overstepped the limits of acceptable
criticism.
The applicant disagreed with the domestic courts
that journalistic criticism should have been deprived of personal feelings or
emotional engagement. Journalists and their newspaper do not function as a
government bulletin recording only facts and events. Publications deprived of
emotions would not even be noticed by the readers, let alone read. Therefore, a
journalist could not be forced to present events without emotional engagement.
The applicant further contested the severity of
the punishment imposed on him, arguing that it had led to a progressive
economic breakdown of the newspaper. He also maintained that in a case like
this, the issue of the limits of acceptable criticism should be determined by
means of civil rather than criminal law.
2. The Government’s submissions
The Government argued that the interference with
the applicant’s right to freedom of expression had been compatible with the
terms of Article 10. The interference was prescribed by law, being based on
Article 212 of the Criminal Code and pursued a legitimate aim, namely the
protection of the reputation or rights of others.
With regard to the proportionality of the
interference, the Government acknowledged that there was little scope under Article
10 § 2 of the Convention for restrictions on political speech or on
debate on questions of public interest. However, the interference in issue was
necessary in a democratic society since the conviction and sentence had not
been disproportionate to the legitimate aim pursued. Furthermore, the domestic
courts gave “relevant and sufficient” reasons for their decisions and
thoroughly justified their finding that the applicant’s statements had amounted
to defamation.
The Government argued that the applicant had
overstepped the limits of acceptable criticism in respect of the district
mayor. For that reason he had been sentenced to a fine of PLN 10,000 which had
been calculated in light of his financial situation. The courts decided not to
impose more severe measures, namely the penalty of restriction of liberty or a
term of imprisonment for up to two years. The penalty actually imposed on the
applicant was the most lenient of the applicable penalties and should be seen
as proportionate to the degree of his guilt as well as the social danger of his
act. Contrary to what was stated by the applicant, the Government observed that
he had placed the district mayor’s full name in his articles.
The Constitutional Court in its judgments in
cases nos. P 10/06 (30 October 2006) and SK 43/05 (12 May 2008) underlined
the importance of freedom of expression in a democratic society, while
stressing that the dignity of an individual had also to be protected by the
authorities. In the case of conflict between freedom of expression and the
right to private life, the latter could prevail over the former. The Constitutional Court further held that protection of reputation and good name, which were
inextricably linked with the dignity of a person, by means of criminal law did not by itself infringe the relevant provisions of
the Constitution. Civil sanctions would be sufficient if they made it possible
to re-establish the previous state of affairs. However, the consequences of the
infringement of one’s good name could not be reversed and the subsequent
apologies could not eradicate the fact of the infringement. The Government
lastly noted that the criminal proceedings in the applicant’s case had at their
origin a bill of indictment lodged by a private individual himself and not by a
public prosecutor.
3. The Court’s assessment
It was common ground between the parties that
the applicant’s conviction and punishment constituted an interference by a
public authority with his right to freedom of expression.
Such interference will be in breach of Article
10 if it fails to satisfy the criteria set out in its second paragraph. The
Court must therefore determine whether it was “prescribed by law”, pursued one
or more of the legitimate aims listed in that paragraph and was “necessary in a
democratic society” to achieve that aim or aims.
The Court finds, and this has not been disputed,
that the interference was “prescribed by law”, namely by Articles 212 and 213
of the Criminal Code. It further pursued the legitimate aim of protecting “the
reputation or rights of others”.
It remains to be established whether the
interference was “necessary in a democratic society”. This determination must
be based on the following general principles emerging from the Court’s case‑law
(see, among other authorities, Cumpǎnǎ
and Mazǎre v. Romania [GC], no. 33348/96, §§ 88‑91,
ECHR 2004‑XI, with further references):
(a) The test of “necessity in a democratic society”
requires the Court to determine whether the interference corresponded to a
pressing social need. The Contracting States have a certain margin of
appreciation in assessing whether such a need exists, but it goes hand in hand
with European supervision, embracing both the legislation and the decisions
applying it, even those delivered by independent courts. The Court is therefore
empowered to give the final ruling on whether a “restriction” is reconcilable
with freedom of expression as protected by Article 10.
(b) The Court’s task in exercising its supervisory
function is not to take the place of the competent domestic courts but rather
to review under Article 10 the decisions they have taken pursuant to their
power of appreciation. This does not mean that the supervision is limited to
ascertaining whether the respondent State exercised its discretion reasonably,
carefully or in good faith; what the Court has to do is to look at the
interference complained of in the light of the case as a whole, including the
content of the statements held against the applicant and the context in which
he or she has made them.
(c) In particular, the Court must determine whether
the reasons adduced by the national authorities to justify the interference
were relevant and sufficient and whether the measure taken was proportionate to
the legitimate aims pursued. In doing so, the Court has to satisfy itself that
the national authorities, basing themselves on an acceptable assessment of the
relevant facts, applied standards which were in conformity with the principles
embodied in Article 10.
(d) The Court must also ascertain whether the
domestic authorities struck a fair balance between the protection of freedom of
expression as enshrined in Article 10 and the protection of the reputation of
those against whom allegations have been made, a right which, as an aspect of
private life, is protected by Article 8 of the Convention.
The Court has also repeatedly emphasised the
essential role played by the press in a democratic society. Although the press
must not overstep certain bounds, regarding in particular protection of the
reputation and rights of others, its duty is nevertheless to impart – in a
manner consistent with its obligations and responsibilities – information and
ideas on all matters of public interest. Not only does the press have the task
of imparting such 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” (see Bladet Tromsø and Stensaas v. Norway [GC], no.
21980/93, §§ 59 and 62, ECHR 1999‑III, and Axel Springer AG v. Germany
[GC], no. 39954/08, § 79, 7 February 2012).
In the present case the applicant was convicted of
aggravated defamation on account of assertions made in his articles about the
district mayor. He alleged that the district mayor had covered up a corruption
affair in a local hospital (see paragraph 10 above). The Court – concurring
with the position of the domestic courts – considers that the applicant’s
articles contained specific allegations of fact, which as such were susceptible
to proof (see, Lingens v. Austria, 8 July 1986, § 46, Series A no. 103; De
Haes and Gijsels v. Belgium, 24 February 1997, § 42, Reports of Judgments
and Decisions 1997‑I; McVicar v. the United Kingdom, no. 46311/99,
§ 83, ECHR 2002‑III). The applicant did not contend that they were value
judgments.
The Court notes that that in principle the
manner in which a local official carried out his official duties was a matter
of general interest to the community (see, among others, Sokołowski v.
Poland, no. 75955/01, § 45, 29 March 2005; Kwiecień v. Poland,
no. 51744/99, § 51, 9 January 2007). It readily agrees with the applicant that
the role of the press was to assess and criticise the exercise of power by
local government officials. It is further well established that the limits of
acceptable criticism are wider with regard to politicians than with regard to a
private individual (see Lingens, cited above, § 42; Oberschlick
v. Austria (no. 2), 1 July 1997, § 29, Reports of Judgments and Decisions
1997‑IV; Mamère v. France, no. 12697/03, § 27, ECHR 2006‑XIII;
Kwiecień, cited above, § 47).
However, 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 and relating to politicians or
public officials. Under the terms of its second paragraph, the exercise of this
freedom carries with it “duties and responsibilities”, which also apply to the
press. These “duties and responsibilities” are liable to assume significance
when, as in the present case, there is a question of attacking the reputation
of named individuals and undermining the “rights of others”. By reason of the
“duties and responsibilities” inherent in the exercise of the freedom of
expression, 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, among other authorities, Bladet Tromsøand
Stensaas, cited above, § 65; Kasabova v. Bulgaria, no. 22385/03, § 63, 19 April 2011). The Court has also
found that politicians should 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, exercising its freedom of
expression, and a politician’s right to protect his or her reputation is called
for (see Sanocki v. Poland, no. 28949/03, §§ 61-62,
17 July 2007; Kania and Kittel v. Poland, no. 35105/04, § 43, 21 June 2011).
The applicant alleged that the district mayor
had known for long time about the alleged corruption affair in the district
hospital and had failed to notify the prosecution service about it. The Court
reiterates that according to its case-law, the more serious an allegation is,
the more solid its factual basis should be (see, Cumpǎnǎ and Mazǎre, cited above, § 101;
Pedersen and Baadsgaard v. Denmark [GC], no. 49017/99, § 78 in fine,
ECHR 2004‑XI; Rumyana Ivanovav. Bulgaria, no. 36207/03, § 64,
14 February 2008; Kasabova, cited above, § 65 in fine). It considers that the allegation made
against the district mayor was indeed quite a serious one. In those
circumstances the applicant was required to provide a sufficient factual basis
for his assertions, especially seeing that they were made in a popular local
weekly.
Nonetheless, the applicant failed to prove his
factual allegations against the district mayor. The domestic courts
meticulously examined all the relevant evidence before them and found that the
applicant’s assertions had been untrue. Neither the statements of M.Dz. nor the
content of the recorded conversation between the latter and the district mayor
confirmed the applicant’s unqualified assertions. Furthermore, as established
in the domestic proceedings, the district mayor learnt about the alleged
corruption affair from the local businessman at the end of May 2005 and then
from the applicant’s letter of 2 June 2005. Shortly after the receipt of that
letter, the district mayor requested the prosecution service to examine the
issue of alleged corruption. He also denied the applicant’s allegations (see
paragraph 8 above).
Next, the Court needs to determine whether the
applicant acted as a responsible journalist. In situations where, on the one
hand, a statement of fact is made and insufficient evidence is adduced to prove
it, and, on the other, the journalist is discussing an issue of genuine public
interest, verifying whether the journalist has acted professionally and in good
faith becomes paramount (see, Flux v. Moldova (no. 7), no. 25367/05, §41, 24 November 2009). On this
point, the Court attaches particular significance to the trial court’s findings
that the applicant blatantly disregarded the principle of special diligence
required of a journalist under the Press Act with respect to his duty to verify
information in his possession. It underlines that, unless the presence of
special grounds is established, the journalists cannot be dispensed from their
ordinary obligation to verify the factual allegations and the accuracy of their
sources (see, Bladet Tromsø and Stensaas, § 66; Rumyana Ivanova,
§§ 63-65, both cited above).The domestic courts established that,
notwithstanding the gravity of the allegations, the applicant had relied
exclusively on the story put to him by M.Dz. and on the recorded conversation
between the latter and the district mayor. However, as established by the Piotrków Trybunalski Regional Court, the content of the conversation could not possibly serve
as the basis for the applicant’s’ allegations against the district mayor (see
paragraph 26 above).
Significantly, the Court notes that the applicant had not taken
any effective steps to verify the accuracyof his information prior to its
publication (see paragraphs 20 and 26 above). The Piotrków Trybunalski Regional Courtunequivocally confirmed
that at the time of the publication the applicant had not had at his disposal
any information corroborating the alleged cover-up of the corruption. Even
though he knew about the conflict between M.Dz. and the hospital director he
failed to treat the information received from the former with caution and had
not sought comments from the latter. Moreover, he acted with unusual hastewhen
publishing his articlesand cast them in absolute terms (see paragraph 10 above).
Having regard to those elements, the Court cannot but hold that the applicant
manifestly failed to respect the tenets of responsible journalism, such as the
obligation to act professionally and in good faith. The applicant’s claim to
the contrary, namely that he complied with the relevant professional standards
does not find support in the facts of the case.
The Court also notes that the applicant’s modus
operandi in the case gives credence to the domestic court’s finding that –
when publishing a series of articles about the district mayor – the applicant
was motivated by personal malice against him and not by genuine concern to shed
light on the alleged irregularities in the district hospital (see paragraphs 20
and 22 above). In this respect, it is noteworthy that the applicant put
the district mayor at centre stage in his articles, while putting the hospital
directoron the sidelines, even though it was she who had allegedly accepted
bribes.
Furthermore, the domestic courts clearly recognised
that the present case involved a conflict between the right to freedom of
expression and the protection of reputation and they carried out the relevant
balancing exercise, having regard to the Convention standards (see paragraph 14
and 27 above). This point is well illustrated by the trial court’s analysis of
the first charge of defamation against the applicant of which he was acquitted
with reference to the wider limits of acceptable criticism with regard to
persons holding public office.
Having regard to the foregoing, the Court
considers that the reasons adduced by the national courts for convicting the
applicant were relevant to the legitimate aim of protecting the district mayor’s
reputation as well as sufficient within the meaning of its case-law.
It remains to be determined whether the
interference in issue was proportionate to the legitimate aim pursued, in view
of the sanctions imposed. While the use of criminal‑law sanctions in defamation
cases is not in itself disproportionate (see, Radio France
and Others v. France, no. 53984/00, § 40, ECHR 2004‑II; Lindon,
Otchakovsky‑Laurens and July, cited above, § 59; Długołęcki v. Poland, no. 23806/03, § 47, 24 February 2009), the nature and
severity of the penalties imposed are factors to be taken into account, because
they must not be such as to dissuade the press or others who engage in public
debate from taking part in the discussion of matters of legitimate public
concern (see, Cumpǎnǎ
and Mazǎre, cited above, § 111).
In the instant case, the applicant was sentenced
to a fine of 10,000 PLN (EUR 2,600) and ordered to pay various costs which
amounted to an aggregate amount of PLN 2,300 (EUR 600). The domestic courts
found that the amount of the finewas proportionate to the applicant’s financial
situation, the gravity of the offence and the degree of his guilt. The Court
sees no reason to hold otherwise, considering that the domestic courts, when
setting the amount of the fine, took into account the relevant factors, such as
the profits made by the applicant as a proprietor of one of the most widely read
newspapers in the region (compare and contrast, Kwiecień, cited
above, § 56). That assessment is not affected even if the costs of proceedings that
the applicant had to bear were to be taken together with the amount of the fine
(compare and contrast, Kasabova, cited above, § 71, in which the
aggregate amount of fine, damages and costs imposed on the applicant was
equivalent to more than thirty-five times her monthly salary). The domestic
courts also had regard to the fact that the applicant had deliberately
infringed the reputation of the district mayor and had failed to respect professional
journalistic standards.
The Court further notes that the applicant was
not sentenced to any other additional penalties, such as the loss of civil
rights or prohibition to work as a journalist (compare and contrast, Cumpǎnǎ
and Mazǎre, cited above, §§ 117-118). Moreover, the criminal
proceedings against him had their origin in a bill of indictment lodged by the
local politician himself and not by a public prosecutor (see, Długołęcki,
cited above, § 47).
In conclusion, the Court is satisfied that the
authorities struck a fair balance between the interests of, on the one hand,
the protection of the district mayor’s reputation and, on the other, the
applicant’s right to exercise his freedom of expression as a journalist. In
view of the reasons adduced by the domestic courts for convicting the applicant
and of the relative lenience of the punishment imposed on him, the Court finds
that the interference complained of may be regarded as “necessary in a
democratic society” within the meaning of Article 10 § 2 of the Convention.
There has therefore been no violation of Article
10 of the Convention.
II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
The applicant also complained under Article 6 of
the Convention that the proceedings against him had been unfair. He further
alleged a breach of Article 7 and 17 of the Convention.
However, in the light of all the material in its
possession, and in so far as the matters complained of are within its
competence, the Court finds that the above complaints do not disclose any
appearance of a violation of the rights and freedoms set out in the Convention
or its Protocols.
It follows that this part of the application is
manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3
(a) and 4 of the Convention.
FOR THESE REASONS, THE COURT UNANIMOUSLY
1. Declaresthe complaint under Article 10 of
the Convention admissible and the remainder of the application inadmissible;
2. Holds that there has been no violation of
Article 10 of the Convention.
Done in English, and notified in writing on 24 July 2012,
pursuant to Rule77§§2 and3 of the Rules of Court.
Fatoş Aracı David
Thór Björgvinsson
Deputy Registrar President
