DOROTA KANIA v. POLAND (No. 2) - 44436/13 (Judgment (Merits and Just Satisfaction) : Court (Fourth Section)) [2016] ECHR 806 (04 October 2016)

In the case of Dorota Kania v. Poland (No. 2),

The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of:

          András Sajó, President,
          Vincent A. De Gaetano,
          Nona Tsotsoria,
          Paulo Pinto de Albuquerque,
          Krzysztof Wojtyczek,
          Egidijus Kūris,
          Marko Bošnjak, judges,
and Marialena Tsirli, Section Registrar,

Having deliberated in private on 6 September 2016,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

1. The case originated in an application (no. 44436/13) 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, Ms Dorota Kania (“the applicant”), on 30 June 2013.

2. The applicant was represented by Mr S. Hambura, a lawyer practising in Berlin, Germany. The Polish Government (“the Government”) were represented by their Agent, Ms J. Chrzanowska of the Ministry of Foreign Affairs.

3. The applicant alleged that her right to freedom of expression had been breached, in violation of Article 10 of the Convention.

4. On 10 September 2014 the application was communicated to the Government.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

5. The applicant was born in 1963 and lives in Warsaw.

A. The article published in Wprost

6. On 30 March 2007 the applicant, who was at that time a journalist of the weekly magazine Wprost, contacted A.C., the then rector of the University of Gdańsk, in order to inform him that she considered him to be a long-term informant for the communist secret services in the past. She did not refer to any relevant documentary evidence in her possession.

7. On 2 April 2007 the applicant published an article in Wprost entitled “Agents Wearing Ermine”, alleging that during the communist times A.C. had been an informant for the communist secret police. The article had the subheading “Leaders of university anti-vetting revolt collaborated with communist secret services”. A photo showing A.C. in the course of his official duties alongside the article had the caption: “A.C., rector of the University of Gdańsk, used to be an informant for the communist secret services under the name Lek”. The article did not quote its sources, referring in general terms to unspecified documents.

8. The article was also published on the magazine’s website (www.wprost.pl), where it was available until 8 April 2007.

9. On 9 May 2007 the applicant obtained consent from the President of the Institute of National Remembrance (Instytut Pamięci Narodowej -“the IPN”) to access its files. The IPN’s tasks included, inter alia, storing and researching documents of the communist security services. On 10 May 2007 the applicant checked its files registered as Virginia no. 23461, IPN Gd 003/190.

10. On an unspecified date A. C. informed the prosecution authorities that he had been libelled by the author of the article. On 10 May 2007 the Regional Prosecutor in Warsaw refused to institute a criminal investigation and informed A.C. that the offence alleged could only be prosecuted by way of private prosecution.

11. A.C.’s lawyer requested Wprost to publish an apology rectifying the allegations against him and his reply to them. On 15 May 2007 the magazine refused to do so.

12. On 14 May 2007 the magazine published an article written by the applicant (but signed R.P.) entitled “The Party of Fear”. It was available on the magazine’s website until 20 May 2007. Its main thrust was that high-society former informants opposed amendments to vetting legislation introduced in 2006 (see paragraphs 36 below) for fear that their past would come to light. It referred to A.C. as a former informant and contained his photo as rector of the University of Gdańsk.

13. On 15 May 2007 the Media Ethics Council (Rada Etyki Mediów), a body composed mainly of media representatives designated to observe whether journalists followed the applicable rules of professional ethics, sent a letter to the applicant. It criticised the articles in so far as they alleged A.C.’s involvement with the communist secret services, saying that the arguments presented by the applicant in the articles were not sufficiently convincing. It also criticised the applicant for her failure to refer to the precise sources of her allegations. It further referred to a previous public plea to the media requesting them to deal with allegations of collaboration with the communist secret services with the utmost diligence, seriousness and caution, so as not to cause detriment to anyone and to avoid a sensationalist approach to a very serious issue. It recommended that only thoughtful discussion should be held about themes of such importance as collaboration with the secret services and the manner in which vetting legislation should be applied, commensurate with the gravity of the issues involved.

14. On 12 August 2007 the same magazine published an article “New Documents about the Chancellor - Informant”. It was available on the magazine’s website until 19 August 2007. Its thrust was also that A.C. was a former informant. The article did not quote its sources and merely referred generally to unspecified documents. A photo of A.C. was again published alongside it.

B. The action for libel brought by A.C. and the vetting proceedings in respect of A.C.

15. On 14 August 2007 A.C. brought a private bill of indictment against the applicant and S.J., the editor-in-chief of the magazine at that time. It was argued that they had libelled him by publishing the articles and by disseminating untrue information alleging secret and conscious collaboration with the communist secret services. It was submitted that this publication could discredit him in the eyes of the public and result in him losing the confidence necessary to perform his duties as a public university rector, a criminal offence punishable under Article 212 of the Criminal Code.

16. Criminal proceedings were instituted against the applicant and S.J., but were subsequently stayed in May 2010 to obtain information about the result of the vetting process (procedura lustracyjna) in respect of A.C. which was pending at the time.

17. At a hearing on 15 March 2011 in the latter proceedings, the Gdańsk Regional Court held, referring to documents stored by the IPN, that A.C. had made a true vetting statement to the effect that he had not been an informant for the communist secret services. The court established that he had been registered as such, but without his consent or knowledge. It further noted that on 15 April 2003 A.C. had obtained the security certificate issued by the Internal Security Agency guaranteeing him access to classified information. He had therefore already been positively vetted for integrity by the authorities of a democratic State prior to the judgment.

18. The Gdańsk Court of Appeal upheld the first-instance judgment on 7 July 2011.

C. The applicant’s conviction by the first-instance court

19. On 11 October 2011 the criminal proceedings against the applicant were resumed.

20. On 15 February 2012 the Warsaw District Court held that the applicant and editor were guilty of libel under Article 212 § 2 of the Criminal Code.

21. The court found that the plaintiff had been working at the University of Gdańsk since 1974. He had been questioned by the communist secret police on several occasions before 1989, when the communist system in Poland had collapsed.

The applicant had contacted him, apparently by telephone, prior to publication of the first article of 2 April 2007 claiming to know that he had been an informant. She had neither informed him about any IPN documents on which she would be basing her allegations nor sought to meet him in person.

22. The applicant stated before the court that she had written the articles motivated by the public interest. A.C. was a well-known personality and society should be made aware of persons in positions of responsibility who were former informants for the communist secret police.

23. The court considered that while before it the applicant had referred to IPN documents, neither the documents she had submitted originating from these files nor the full file obtained by the court had supported the conclusion that A.C. had been an informant. Certain documents did not refer to him at all, while others did not indicate that he had been an informant. He had never declared willingness to become one. The court referred to a document in the IPN’s files which noted his reluctance to be involved with the services when urged by them to turn into an informant. In these files he was only referred to as being on the staff of the university in the 1970s. They also demonstrated that he had been questioned by the communist services after coming back to Poland following a scholarship in the United States.

24. The court concluded that the documents it had before it in evidence were manifestly insufficient to hold that the plaintiff had been an informant.

25. In the light of the documents available, the thesis advanced by the applicant was not only devoid of factual basis, but also incompatible with her obligation to show proper journalistic diligence. She had only obtained access to the full set of IPN files concerning A.C. after her first article had been published. She had only received a decision from the director of the IPN allowing her to access the documents on 9 May 2007, after the article had been published and created a considerable media stir. She had failed to contact A.C. prior to the publication to try to check the veracity of the information, apart from her telephone call to him whereby she had only informed him that she would be publishing the article.

26. The Warsaw District Court concluded that the applicant had failed to show the journalistic diligence required of her under section 12 of the 1984 Press Act. The impugned articles contained unreliable information, which she had assessed in a superficial manner. Being an informant for the communist secret police was perceived in society in an extremely negative manner. It was therefore not open to doubt that allegations made by the applicant could stigmatise A.C. and undermine public confidence in his capacity to hold office within the meaning of Article 212 of the Criminal Code. The mere fact that the court had gathered more material relevant to establishing the facts concerning A.C.’s past than the applicant had had at her disposal prior to the publication of the impugned articles demonstrated that she had formulated her allegations without a sound factual basis. In the light of that material, it had to be concluded that the statements made in the article were untrue, or at least unfounded.

27. The court referred to the Court’s case-law on Article 10 of the Convention on freedom of the press. It noted that that freedom carried duties and responsibilities on the part of journalists. It was limited by the criterion of truthfulness on the one hand, and the necessity to protect important values such as dignity, reputation, honour and the private life of individuals on the other. In the present case, the applicant had not had sufficient knowledge at her disposal to support the factual thesis she had advanced in the articles. She had therefore overstepped the limits of acceptable criticism, defamed the plaintiff and thereby committed a criminal offence.

28. The court imposed fines on the applicant and her co-defendant, the magazine’s editor-in-chief. It determined the amount of the applicant’s fine at 3,000 Polish zlotys (PLN - approximately 750 euros (EUR)) and ordered her to pay PLN 2,500 (approximately 625 EUR) to charity. The court observed that the amount of the fine had been determined with regard to the degree of the applicant’s guilt. The publication of the articles had been her idea and she had written them. However, the fine imposed on her was lower than that imposed on the editor, regard being had to the fact that her income was lower than his. The court further noted that the plaintiff had demanded that a custodial sentence be imposed on the applicant. However, the court was of the view that a non-custodial sentence was sufficient in the circumstances, commensurate with the gravity of the offence. It further ordered that the judgment be made public, having regard to a request submitted by the plaintiff and Article 215 of the Criminal Code, which obliged the court to allow such requests in cases involving convictions based on Article 212 of that Code.

D. The applicant

29. The applicant and her co-accused appealed, raising many procedural arguments.

30. On 26 September 2012 the Warsaw Regional Court upheld the judgment, essentially sharing the findings and views of the first-instance court. The defendants’ appeals were considered by the court to be unfounded. The court ordered the applicant to pay PLN 300 (approximately EUR 85) in costs to the State Treasury. It further ordered her and her co-accused to pay jointly the plaintiff’s costs before the appellate court, amounting to PLN 3,100 (approximately EUR 775).

II. RELEVANT DOMESTIC LAW

A. The Constitution

31. 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.”

32. Article 54 § 1 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. Criminal Code

33. Article 212 of the Criminal Code provides, in so far as relevant:

“1. Whoever imputes to another person, a group of persons, an institution, a legal person or an organisation without legal personality, such or characteristics as may lower that person, group or entity in public esteem 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 media he shall be sentenced to a fine, a restriction of liberty or imprisonment not exceeding two years.”

34. Article 213 of the Code 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 or corruption of a minor.”

C. Other relevant domestic law

35. In accordance with section 12(1)(1) of the Press Act, a journalist is under a duty to act with particular diligence in gathering and using information, and is, in particular, required to verify the truthfulness of information obtained.

36. On 3 August 1997 the 1997 Lustration Act entered into force. It imposed on certain categories of persons exercising public functions an obligation to make a declaration that prior to 1989 they had not been informants collaborating with the communist secret services. Collaboration within the meaning of this Act was to mean intentional and secret collaboration with operational or investigative branches of the State’s security services as a secret informer or assistant in the information gathering process.

37. The Law of 18 December 1998 on the Institute of National Remembrance (Ustawa o Instytucie Pamięci Narodowej - Komisji Ścigania Zbrodni przeciwko Narodowi Polskiemu - “the IPN Act”) entered into force on 19 January 1999. The IPN’s tasks included, inter alia, storing and researching documents of the communist security services. Right of access to those documents was guaranteed primarily to “injured parties” as defined in the IPN Act.

38. The IPN Act was amended by the Law of 18 October 2006 on disclosing information about documents of the State security services from the period between 1944 and 1990 and their content (ustawa o ujawnianiu informacji o dokumentach organów bezpieczeństwa państwa z lat 1944-1990 oraz treści tych dokumentów - “the 2006 Lustration Act”). The amendments entered into force on 15 March 2007. They essentially reiterated an obligation for persons holding public offices to make a declaration that they had not been informants.

39. The 2006 Lustration Act and IPN Act were further amended by the Law of 14 February 2007. The amendments entered into force on 28 February 2007.

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION

40. The applicant complained of a breach of her right to freedom of expression under 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.”

41. The Government contested that argument.

A. Admissibility

42. The applicant submitted in her application form that the judgment given by the appellate court on 26 September 2012 (see paragraph 30 above) had been served on her lawyer on 2 January 2013. No document confirming the date of service was submitted to the Court at that time. The applicant was requested to do so. She stated in reply that she had requested the registry of the domestic court for a copy of a service confirmation slip and submitted its refusal to make the document available to her.

43. The Government expressly acknowledged that the applicant had complied with the requirement to lodge her application with the Court within a period of six months from the date on which the final decision was taken.

44. On numerous occasions, the Court has considered the six-month rule a public policy rule and that, consequently, it has jurisdiction to apply it of its own motion (see Assanidze v. Georgia [GC], no. 71503/01, § 160, ECHR 2004-II). It is not open to the Court to set aside the application of that rule solely because a respondent Government have not made a preliminary objection based on that rule (see Walker v. the United Kingdom (dec.), no. 34979/97, ECHR 2000-I). However, in the present case the Government have addressed this issue. Given their express acceptance of the applicant’s compliance with the requirement to lodge an application within six months, and regard being had to the document submitted by the applicant and her difficulties in obtaining evidence relating to the date of service of the judgment on her lawyer (see paragraph 42 above), the Court accepts that she complied with that requirement.

45. The Court has held in previous cases that if a Government do not plead an applicant’s failure to exhaust applicable remedies, it is not for the Court to consider this matter of its own motion (see Rydz v. Poland, no. 13167/02, § 72, 18 December 2007 and Rybacki v. Poland (dec.), no. 52479/99, 9 October 2007). The Court notes that the Government accepted expressly that the applicant exhausted relevant domestic remedies.

46. The Court notes that the application 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 parties’ arguments

(a) The applicant

47. The applicant disagreed with the Government’s argument that the statements about A.C.’s involvement in the communist secret services were statements of fact. She submitted that the contested articles had been based on reliable sources she had verified. Her assessment of the IPN files available had led her to the conclusion that the plaintiff had collaborated with these services in the past.

48. The applicant disagreed that her opinions should be assessed in terms of truth or falsehood. Acting in her capacity as a journalist, she had a right to share her findings and value judgments about A.C. with the public. The domestic courts, having before them as evidence the same IPN files, had reached different conclusions as to the nature of his involvement. Such a divergence of opinions should be considered normal in a democratic society, had it not been for the subsequent negative consequences for the applicant, namely her criminal conviction.

49. The applicant had formed her opinion on the basis of many other sources, not only the files referred to above. It would have been unreasonable to expect her to abstain from expressing any views unless she had been in possession of evidence proving her point beyond reasonable doubt. In such cases, it was hardly ever possible to get hold of a complete file or written declaration confirming collaboration with the former communist secret services. The applicant had never declared that she had had access to full documentation concerning the plaintiff’s contacts with these services. Her opinions had been neither immoderate nor expressed in bad faith.

50. She further argued that the impugned articles related to a public debate on a subject of general concern, as the issue of collaboration of Polish academics with the communist security services was of considerable significance. She referred in this context to the Court’s judgment in the case of Braun v. Poland (no. 30162/10, § 50, 4 November 2014) where the Court had confirmed this. Furthermore, the Court had held in that case that it had been unable to accept the domestic court’s approach that the applicant had been obliged to prove the veracity of his allegations. The same approach should be applied in the applicant’s case.

51. The applicant was of the view that the interference had been excessive. The fine and order to pay damages could have a chilling effect on freedom of expression, all the more so as she had been prosecuted in a criminal trial for expressing her views.

52. Finally, she argued that the domestic courts had failed to have due regard to the standards of Article 10 of the Convention as the appellate court had made no reference whatsoever to this freedom in its judgment.

(b) The Government

53. The Government averred that the interference had a legal basis, namely Article 212 § 2 of the Criminal Code (see paragraph 33 above), thus the limitation on freedom of expression was prescribed by the domestic law and served a legitimate aim.

54. They further argued that the impugned articles about the alleged past of A.C. as a secret and conscious service’s informant were undoubtedly factual statements.

55. The applicant had presented information selectively. A.C.’s requests to rectify untrue information published about him had been ignored (see paragraph 11 above). The domestic courts had found that the applicant had not acted with due diligence while gathering and verifying her materials. In so far as the applicant had testified that she had relied on the file from the IPN, the court had examined the relevant files in detail. Importantly, it had found that it had provided no basis for a conclusion that the plaintiff had been an informant.

56. The Government emphasised that the courts had noted that the applicant had contacted A.C. prior to the publication of the first article, but merely to tell him that she had planned to publish the article containing allegations about him. The articles had subsequently been published despite his protestations.

57. The applicant’s good or bad faith should be assessed in the light of the fact that she had only obtained access to the IPN files after the first article containing the allegations against A.C. had been published. She had actually read the files on 10 May 2007 (see paragraph 9 above), several weeks afterwards. She had failed to react in any way to the opinions voiced by the Media Ethics Council, which had regarded her article as an improper breach of A.C.’s rights (see paragraph 13 above). Information published in the articles had amounted to a distortion of the facts, regard being had in particular to the titles given to the texts. The applicant had therefore failed to respect the requirements of responsible journalism.

58. The Government further argued that the defendant had been rector of the University of Gdańsk at the material time. The allegations against him had been of such a nature as to seriously affect his reputation and good name. The impugned articles had been published both in paper format and online. The general public had therefore had access to them for a relatively long period of time. This had made the damage suffered by A.C. even more serious. The issues involved in the articles fell within the notion of public debate on a subject of general public concern. However, freedom of expression could not render an infringement of personal rights by way of dissemination of untrue information legitimate. Nothing had exonerated the applicant from her obligations to act ethically and to protect the personal rights of persons concerned by her texts.

59. The Government stressed that the courts had referred to the Court’s case-law on Article 10 of the Convention on freedom of the press.

60. As to the severity of the penalties imposed, the Government submitted that the court had determined the fine to be imposed on the applicant, taking into consideration her personal, family and financial situation.

2. The Court’s assessment

(a) The applicable principles

61. 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, § 41, 8 July 1986, Series A no. 103, and Braun, cited to above, § 57).

62. 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 and Delfi AS v. Estonia [GC], no. 64569/09, § 132, 16 June 2015). 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 boundaries, particularly in respect of the reputation and rights of others and the need to prevent 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).

63. Nonetheless, Article 10 of the Convention does not guarantee a 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. The protection afforded by Article 10 of the Convention to journalists is subject to the proviso that they act in good faith in order to provide accurate and reliable information in accordance with the tenets of responsible journalism (see, mutatis mutandis, Bladet Tromsø and Stensaas v. Norway [GC], no. 21980/93, § 65, ECHR 1999-III; Fressoz and Roire v. France [GC], no. 29183/95, § 54, ECHR 1999-I; Kasabova v. Bulgaria, no. 22385/03, §§ 61 and 63-68, 19 April 2011; Rusu v. Romania, no. 25721/04, § 24, 8 March 2016; and Times Newspapers Ltd v. the United Kingdom (nos. 1 and 2), nos. 3002/03 and 23676/03, § 42, ECHR 2009).

The concept of responsible journalism, as a professional activity which enjoys the protection of Article 10 of the Convention, is not confined to the contents of information which is collected and/or disseminated by journalistic means. That concept also embraces, inter alia, the lawfulness of the conduct of a journalist, including, and of relevance to the instant case, his or her public interaction with the authorities when exercising journalistic functions. The fact that a journalist has breached the law in that connection is a most relevant, albeit not decisive, consideration when determining whether he or she has acted responsibly (see Pentikäinen v. Finland [GC], no. 11882/10, § 90, ECHR 2015).

64. Furthermore, Article 10 of the Convention does not guarantee a 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 [GC], cited above, § 54; Pedersen and Baadsgaard v. Denmark [GC], no. 49017/99, § 78, ECHR 2004-XI; and Lindon, Otchakovsky-Laurens and July v. France [GC], nos. 21279/02 and 36448/02, § 67, ECHR 2007-IV).

65. Moreover, these “duties and responsibilities” are liable to assume significance when there is a question of attacking the reputation of a named individual and infringing the “rights of others”. Thus, special grounds are required before the media can be dispensed from their ordinary obligation to verify factual statements that are defamatory of private individuals. Whether such grounds exist depends in particular on the nature and degree of the defamation in question and the extent to which the media can reasonably regard their sources as reliable with respect to the allegations (see Bladet Tromsø and Stensaas [GC], cited above, § 66). These factors, in turn, require consideration of other elements such as the authority of the source, whether the newspaper had conducted a reasonable amount of research before publication (see Prager and Oberschlick v. Austria, 26 April 1995, § 37, Series A no. 313), whether the newspaper presented the story in a reasonably balanced manner (Bergens Tidende and Others v. Norway, no. 26132/95, § 57, ECHR 2000 IV) and whether the newspaper gave the persons defamed the opportunity to defend themselves (Bergens Tidende and Others, cited above, § 58).

66. In this connection, the Court reiterates that the journalists’ obligations referred to above require that the media should be able to reasonably regard their sources as reliable with respect to the allegation they make, and that the more serious an allegation is, the more solid the factual basis has to be (see Pedersen and Baadsgaard, cited above, § 78; McVicar v. the United Kingdom, no. 46311/99, § 84, ECHR 2002-III; Bladet Tromsø and Stensaas [GC], cited above, § 66; and Wołek, Kasprów and Łęski v. Poland (dec.), no. 20953/06, 21 October 2008).

67. In the exercise of its supervisory duties, the Court must verify whether the authorities struck a fair balance when protecting two values guaranteed by the Convention which may come into conflict with each other in cases such as the present, namely freedom of expression protected by Article 10 on the one hand, and the right of the person concerned to protect his reputation on the other, a right enshrined in Article 8 of the Convention as part of the right to respect for private life (see Ungváry and Irodalom Kft v. Hungary, no. 64520/10, § 43, 3 December 2013).

68. In cases such as the present one the Court considers that the outcome of the application should not, in principle, vary according to whether it has been lodged with the Court under Article 10 of the Convention by the publisher who has published the offending article or under Article 8 of the Convention by the person who was the subject of that article. Indeed, as a matter of principle these rights deserve equal respect (see Hachette Filipacchi Associés (ICI PARIS) v. France, no. 12268/03, § 41, 23 July 2009 and Mosley v. the United Kingdom, no. 48009/08, § 111, 10 May 2011). Accordingly, the margin of appreciation should in principle be the same in both cases. Where the balancing exercise between those two rights has been undertaken by the national authorities in conformity with the criteria laid down in the Court’s case-law, the Court would require strong reasons to substitute its view for that of the domestic courts (see Axel Springer AG v. Germany [GC], no. 39954/08, §§ 87-88, 7 February 2012).

69. Furthermore, the Court has reiterated on many occasions that in assessing the proportionality of an interference, the nature and severity of the penalties imposed are also factors to be taken into account (see, among many other authorities, Weigt v. Poland (dec.), no. 74232/01, 11 October 2005; Skałka v. Poland, no. 43425/98, § 38, 27 May 2003; and Sokołowski v. Poland, no. 75955/01, § 51, 29 March 2005).

(b) Application of these principles to the circumstances of the present case

70. The Court notes that it is undisputed that the criminal proceedings against the applicant amounted to an “interference” with the exercise of her 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 Article 212 of the Criminal Code (see paragraph 33 above), and was intended to pursue a legitimate aim referred to in Article 10 § 2 of the Convention 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 that aim.

71. In assessing the necessity of the interference, it is important to examine the way in which the relevant domestic authorities dealt with the case, and in particular whether they applied standards which were in conformity with the principles embodied in Article 10 of the Convention.

72. The applicant published a series of articles accusing A.C., rector of a public university at that time, of collaborating with the communist secret services in the past. The Court accepts that the past of a rector of a public university is an issue of public interest. Furthermore, it has already confirmed on numerous occasions that similar issues concerning the establishment of facts and expressing opinions about the historic involvement of public officials with institutions of the communist regime fall within the ambit of public debate in a democratic society (see Petrina v. Romania, no. 78060/01, § 43, 14 October 2008; see also, mutatis mutandis, Ungváry and Irodalom Kft v. Hungary, cited above, § 63).

73. The Court reiterates that the right to protection of reputation is a right which is protected by Article 8 of the Convention as part of the right to respect for private life (see Chauvy and Others v. France, no. 64915/01, § 70, ECHR 2004-VI and Polanco Torres and Movilla Polanco v. Spain, no. 34147/06, § 40, 21 September 2010). In order for Article 8 to come into play, however, an attack on a person’s reputation must attain a certain level of seriousness and be carried out in a manner causing prejudice to personal enjoyment of the right to respect for private life (see Axel Springer AG [GC], cited above, § 83). The Court takes note that the accusation was serious for Mr A.C. To call somebody a secret collaborator with the communist-era security services carries a negative assessment of his behaviour in the past and is surely an attack on his good name. The domestic authorities were therefore faced with the task of balancing two conflicting values, namely freedom of expression of the applicant on the one hand and Mr A.C.’s right to respect for his reputation on the other (see Axel Springer AG [GC], cited above, § 84).

74. It is noted in this connection that the domestic courts were aware of the weight and seriousness of the applicant’s allegation and stressed that in their judgments. They were of the view that the subject matter of the case imposed on journalists special obligations with a view to striking an appropriate balance between their right to freedom of expression and the need to respect individuals’ rights to good name, honour and reputation. In this respect, it is worth noting that the Warsaw District Court expressly made a reference to the Court’s case-law on Article 10 of the Convention on freedom of the press (see paragraph 27 above). The Court is satisfied that in this regard the domestic authorities examined the applicant’s case also in the light of the standards of Article 10 of the Convention (compare and contrast Sokołowski, cited above, § 46; Zakharov v. Russia, no. 14881/03, §§ 29 and 30, 5 October 2006; see, mutatis mutandis, Błaja News Sp. z o.o. v. Poland, no. 59545/10, § 65, 26 November 2013).

75. The Court further observes that the courts examined the circumstances of the case in detail. The first-instance court first instituted proceedings against the applicant following a private bill of indictment against her brought by A.C., but subsequently decided to stay them because vetting proceedings concerning the latter were at that time pending before another court (see paragraph 16 above). It considered the outcome of these proceedings relevant for the examination of the case against applicant and wished to be able to proceed on the basis of the lustration court’s findings as to A.C.’s alleged involvement in the communist secret services. The Court cannot overlook, for the purposes of the examination of the present case, that the lustration court found his declaration that he had not been an informant truthful (see paragraph 17 above).

76. Subsequently, when the defamation proceedings were resumed, the court had before it the IPN file concerning A.C (see paragraph 23 above). It is not for the Court to take a stand as to whether the IPN files were capable of providing decisive evidence as to whether a person had been an informant for the communist secret services. However, it is satisfied that the domestic courts based their conclusions on ample evidence.

77. The courts further examined whether the research done by the applicant before the publication of her allegations had been in good faith and complied with the ordinary journalistic obligation to verify the facts from reliable sources (Rumyana Ivanova v. Bulgaria, no. 36207/03, §§ 64-65, 14 February 2008, and Kania and Kittel v. Poland, no. 35105/04, §§ 45-46, 21 June 2011). The District Court noted that the applicant had contacted A.C. by telephone prior to the publication of the first article. However, it observed that on this occasion she had not referred to any evidence in her possession at that time. She had merely claimed to know that he had been an informant.

78. The Warsaw District Court further established that the applicant had not sought to meet A.C. in person before the publication of the first article in the series (see paragraph 21 above).

79. In the same vein, the domestic courts found, and it was not in dispute in the proceedings before the Court, that the applicant had obtained access to the IPN files on 9 May 2007 and had actually read A.C.’s files the following day, over a month after the first article had been published on 2 April 2007 (see paragraphs 9 and 25 above). It has not been argued, let alone shown, either before the domestic courts or in the proceedings before the Court, that the applicant had tried to have access to relevant documents stored by the IPN prior to the publication of the first article.

80. As to the basis on which the applicant advanced her allegations in the subsequent two articles, the Court notes that the national courts had negatively assessed conclusions the applicant had drawn from the material she had presented to the court during the domestic proceedings. In particular, the first-instance court emphasised that the IPN documents she had obtained access to in May 2007 did not provide, contrary to her assertions, a sound basis for the allegations contained in the articles. Quite to the contrary, the court observed, inter alia, that the documents noted A.C.’s unwillingness to become an informant (see paragraphs 23 and 24 above).

81. To sum up, the applicant’s conviction was based essentially on the findings of fact to the effect that she had failed to comply with her journalistic obligations of diligence. In these circumstances, the domestic courts’ conclusion that the applicant had published the first article having failed to take steps that can reasonably be expected to provide some factual basis for her allegations is not open to criticism.

82. 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.

83. The Court further notes that in deciding on the penalty to be imposed on the applicant the Warsaw District Court carefully weighed the possibilities open to it under domestic law, declined to impose a custodial penalty, and determined the amount of the fine imposed on the applicant with regard to her income (see paragraph 28 above). It has not been argued, let alone shown, that the amounts the applicant was obliged to pay had a disproportionate impact on her financial situation. The Court is therefore satisfied that the penalty was moderate and reasonably proportionate to the damage to his reputation that the victim of the offence had suffered.

84. Having regard to the above, the Court is satisfied that the authorities struck a fair balance between the interests of the protection of the plaintiff’s reputation on the one hand and the applicant’s right to exercise her freedom of expression where issues of public interest are concerned on the other and that this assessment was done in conformity with the criteria laid down in the Court’s case-law (see paragraph 68 above).

85. 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.

86. There has accordingly been no violation of that provision.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

1. Declares the application admissible;

2. Holds that there has been no violation of Article 10 of the Convention.

Done in English, and notified in writing on 4 October 2016, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Marialena Tsirli András Sajó
Registrar President

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You are here: BAILII >> Databases >> European Court of Human Rights >> DOROTA KANIA v. POLAND (No. 2) - 44436/13 (Judgment (Merits and Just Satisfaction) : Court (Fourth Section)) [2016] ECHR 806 (04 October 2016) URL: http://www.bailii.org/eu/cases/ECHR/2016/806.html Cite as: [2016] ECHR 806, ECLI:CE:ECHR:2016:1004JUD004443613, CE:ECHR:2016:1004JUD004443613