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KULIS v. POLAND - 15601/02 [2008] ECHR 210 (18 March 2008)
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[2008] ECHR 210
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FOURTH
SECTION
CASE OF KULIŚ v. POLAND
(Application
no. 15601/02)
JUDGMENT
STRASBOURG
18 March 2008
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial
revision.
In the case of Kuliś v. Poland,
The
European Court of Human Rights (Fourth Section), sitting as a Chamber
composed of:
Nicolas Bratza,
President,
Lech
Garlicki,
Giovanni
Bonello,
Stanislav
Pavlovschi,
Ljiljana
Mijović,
Ján
Šikuta,
Päivi
Hirvelä,
judges,
and Lawrence Early, Section
Registrar,
Having
deliberated in private on 26 February 2008,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
The
case originated in an application (no. 15601/02) 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 Mirosław Kuliś
(“the applicant”), on 8 April 2002.
The
applicant was represented by Mrs A. Wyrozumska, Professor
of law in the University of Łódź. The Polish
Government (“the Government”) were represented by their
Agent, Mr J. Wołąsiewicz of the Ministry of
Foreign Affairs.
The
applicant alleged a breach of his right to freedom of expression
guaranteed by Article 10 of the Convention.
On
4 April 2006 the Court decided to communicate the application to the
Government. Under the provisions of Article 29 § 3 of the
Convention, it decided to examine the merits of the application at
the same time as its admissibility.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The
applicant was born in 1956 and lives in Łόdź, Poland.
The
facts of the case, as submitted by the applicant, may be summarised
as follows.
A. The background
On
10 June 1992 Mr Andrzej Kern, at that time the Deputy Speaker of the
Sejm, notified the Regional Prosecutor that a certain Mr Gąsior
and Mrs Izabela Malisiewicz-Gąsior had kidnapped his
17-year-old daughter, M.K. However, Mr Gąsior and
Mrs Malisiewicz Gąsior submitted that the allegation
was false as M.K. had in fact run away from home and had only been
accompanied by their son Maciej who had been her boyfriend for a long
time. M.K. had previously run away from home on several occasions
because of conflicts with her parents.
On
the same day the Łódź Regional Prosecutor initiated
an investigation into the allegations of kidnapping against Mr Gąsior
and Mrs Malisiewicz Gąsior. On 10 and 11 June 1992 the
prosecutor issued a warrant authorising the search of their flat and
the tapping of their telephone. They were arrested and remanded in
custody. In August 1992 the case was taken over by the Poznań
Regional Prosecutor who discontinued the criminal proceedings against
them, finding that the allegations of kidnapping had been groundless.
Disciplinary proceedings were brought against both prosecutors who
had instituted the criminal proceedings.
On
29 June 1992 Mr A. Kern had made a statement on public television in
which he said that his daughter had been kidnapped and asked for
assistance in finding his child.
The
case concerning the alleged kidnapping of M.K. received wide coverage
in the media.
B. The article in the newspaper
The
applicant owns a publishing house named “Westa-Druk”
which publishes the weekly magazine “Angora”.
On
16 August 1992 the applicant published in “Angora” an
interview with Mr Michał Plisecki, a lawyer who at the material
time represented Mr Gąsior and Mrs Izabela
Malisiewicz-Gąsior in the criminal proceedings concerning the
alleged kidnapping. The article was entitled: “If it had been
quiet” and was in the form of questions put by a journalist and
answers given by Mr M.P. The article, in so far as relevant, read as
follows:
“‘A[ngora]’:-I have brought you
fresh news from Łódź: the arrest warrant against
[Maciej Gąsior] has been quashed, the children however have not
come back home.
M.P. [Michał Plisecki]:- I do not want to –
publicly – go into the details concerning the issuing and
quashing of the arrest warrant. Allow me not to comment on it because
I would have been forced to use very blunt language. I would refer to
another issue: if it is true that [M.K.’s] parents - after an
unsuccessful attempt to place her in a psychiatric clinic –left
her alone, under the care of her grandmother somewhere in the
countryside, then should I – as a parent – be shocked by
such behaviour? There is no other conclusion from the above fact:
they simply do not love her. It is not that they do not understand
her, because this is proved by their behaviour as a whole, but that
the wish to separate [M.K.] from the world is in the interests of
those people. Mr Kern’s statement that he suspected that
his daughter had been spying on him while she was dating Maciej and
in particular the statement by the mother of [M.K.] that her daughter
had been serving as a mattress for Maciej – this is terrifying!
That was probably the reason why the Member of Parliament Mr
Kołodziejczyk, who represents the interests of all citizens,
decided to apply to the family court to solve the tragic problem of
[M.K.] and the Kern family. If I may give my private opinion, I also
believe that one should think over how to arrange [M.K.’s]
future life.
(...)
‘A’:- So, if it was not for journalists,
it would have been different? Maybe quieter?
M.P. If it had been quieter, then from my point of view,
and after Mr Kern’s having publicised the case in a certain
context, I do not exclude the possibility that my client
[Mrs Malisiewicz-Gąsior] would still have been in the
detention centre. I do not exclude the possibility that Mr Gąsior
would have been arrested too. The fact that my clients are free is
due to the pressure of public opinion.
(...)
‘A’:- You have said: ‘M.K. ran away
from home’. But it has been said that it was an abduction or
kidnapping.
M.P. The prosecutor and his deputy know that [M.K.] ran
away from home. It has been proved by witnesses (...) [M.K.] had
asked Maciej to accompany her and that is what happened. This is not
a crime!
‘A’:- The Helsinki Committee [for Human
Rights], the Ombudsman, the President...
M.P. ... let me add: the Political Group Porozumienie
Centrum. Recently the Group made an appeal for assistance for Mr
Kern - turning to the Ministers of Justice and of Internal Affairs –
in the private matter of Mr Kern. I believe that since Mr Kern
has abused power and has caused such unlawfulness and it has been
supported by this Political Group, it means that Porozumienie
Centrum supports these kinds of methods involving aggressive
behaviour.
‘A’: -You have said: Mr Kern has abused
power. Is it a question or a statement?
M.P.:-He has obviously abused power because as the
Speaker of the Sejm he had access to the media and gave false
information; the fact that he is a liar I can prove – if
necessary – in court. I authorise you to print this text. If Mr
Kern says that he is not a liar, I will prove the contrary in
court!
‘A’:-What do you think about the fact
that the Member of Parliament Mr Kołodziejczyk applied to
the Łódź District Court?
M.P.:- It is for the court to decide, in every family
case, with which parent the child should stay. In such cases both the
parents and the child often undergo psychological and psychiatric
examination – obviously upon a decision of a court. This is a
typical case; the court is to decide on the family matter of Mr and
Mrs Kern. Therefore, both the parents and [M.K.] should undergo the
relevant examination. This is usual, routine procedure. That, in
turn, proves how diligently Mr Kołodziejczyk approached this
case. [M.K.] had turned to him for help, placed trust in him. In
consequence he contacted, as I know, many people, me included, but I
could not dispel his doubts. I then turned (sic!) [he turned] to
specialists – psychologists. He was told by them that before
they could make any decision they should talk with both the child and
the parents. Then, very tactfully, he asked the Speaker [of the Sejm]
Mr Chrzanowski to pass these suggestions to Mr Kern. Only after
Mr Kern had refused, did Mr Kołodziejczyk do what any
honest and respectable person would have done: he informed a court
that in the Kern family bad things were happening. It is a lie that
Mr Kołodziejczyk ordered the examination by specialists. He
cannot order it! He only asked for appropriate action to be
undertaken. (...)”
Subsequently,
and in connection with the above interview, disciplinary proceedings
were initiated against Mr Michał Plisecki by the local Bar
Council. On 24 June 1995 the High Disciplinary Court (Wyższy
Sąd Dyscyplinarny) found that Mr Michał Plisecki had
breached the rules of professional conduct and reprimanded him. The
court reiterated that the lawyers between themselves (Mr Plisecki, Mr
Kern and his wife were all members of the Bar) should follow the
rules of politeness and friendliness. The court found that Mr
Plisecki had breached those rules and had failed to express his
critics in a restraint manner.
C. The civil claim against the applicant
On 8 August 1995 Mr Kern, his wife and his daughter
M.K., (“the plaintiffs”) lodged against the applicant’s
publishing house “Westa-Druk” a civil claim for
protection of their personal rights. They maintained that the press
had played a major role in the case involving their family as they
“presented the facts and judgments tendentiously, causing de
facto damage to the plaintiffs.” The plaintiffs further
sought an award of PLN 28,000 in compensation and an order
requiring the defendant to publish the following apologies:
“We apologise to the Deputy Speaker of the Sejm,
Mr A. Kern, his wife Mrs Zofia Pstrągowska-Kern and his
daughter [M.K.] for grossly violating their personal rights by having
published the article ‘If it had been quiet’, in Angora
(...), in particular, by uncritically quoting the totally
irresponsible statements of Mr Michał Plisecki in which he:
- said of A. Kern that he ‘had obviously abused
power’ and ‘caused unlawfulness’ in connection with
the investigation conducted by the Łódź Regional
Prosecutor into the alleged kidnapping of his daughter,
- said that Mr Kern had been providing the media with
untrue information and called him a liar,
- imputed to Mr and Mrs Kern the wish to place their
daughter in a psychiatric clinic, called their parenting skills into
question and stated without any reason that the parents and [MK]
should ‘undergo psychiatric and psychological examination.’
We express our regret over the harm done to the injured
party”.
D. The first-instance judgment
On
15 May 1998 the Łódź Regional Court (Sąd
Wojewódzki) gave judgment for the plaintiffs. The court
ordered the applicant to publish apologies as sought in the statement
of claim and awarded the plaintiffs compensation in part, i.e. PLN
8,500. The court stated, inter alia:
“...One should agree with [the applicant] that,
being the publisher, he had the right to inform the readers about
important circumstances concerning [A. Kern] who at the material time
held one of the highest positions in the State. Therefore, publishing
such information was not illegal despite the fact that it affected
the plaintiffs’ personal rights that are protected by law. The
article, however, includes not only information but also statements
that damaged their reputation; i.e. their good name. The statement
that Mr and Mrs Kern had made an unsuccessful attempt to place their
daughter in a psychiatric clinic, that they do not understand and
love her and that her separation from the world is in her interest,
disparaged their parenting skills, and questioned their moral values.
The information that the family should have been
examined by psychologists and psychiatrists had also harmed them in
the eyes of others.
It concerns in particular the parents of Ms [M.K.] who
at that time held important positions and the state of their mental
health should not have been an object of public discussion. Finally,
calling Mr Kern a liar and stating that he had abused power,
obviously harmed his good name and exposed him to the loss of trust
of his voters and of the leaders of the party of which he was a
member. Therefore, the [applicant’s] actions were ... illegal
because they breached the good name and reputation of the plaintiffs.
The court did not agree with the [applicant’s]
opinion that [since] he was not the author of the quoted statements,
he was not obliged to check the truthfulness of the information
included in the interview with Michał Plisecki...”
On
27 July 1998 the applicant lodged an appeal with the Łódź
Court of Appeal. He alleged, inter alia, that the court had
infringed his freedom of expression in breach of Article 10 of the
Convention, as it had overstepped the margin afforded to it and
violated the principle of proportionality between the legitimate aim
pursued and the measures applied. The interference with his right was
particularly striking as the case concerned a politician who should
have been more tolerant of criticism. The applicant further argued
that Mr Kern himself had made public information concerning his
private life by giving statements concerning the alleged kidnapping
of his daughter in the television and the press.
Mr
Michał Plisecki, who joined the proceedings as an intervener
(interwenient uboczny), also lodged an appeal.
E. The appellate proceedings
On
26 January 1999 the Łódź Court of Appeal found that
the applicant had sullied the good name of the plaintiffs. It amended
the judgment in so far as the text of the apology to be published was
concerned and increased the sum to be paid by the applicant to all
plaintiffs by way of costs and expenses to PLN 3,316. It upheld the
remainder of the judgment. The applicant was to publish the following
apology:
“We apologise to Mr Kern, his wife Mrs Zofia
Pstrągowska-Kern and daughter [M.K]. for breaching their
personal rights by the publication entitled «if it had been
quiet» in particular by citing the statements made by the
lawyer M.P. in which he referred to the plaintiffs’ parenting
skills and gave his opinion as to their family life, and called the
first plaintiff a liar.”
The
appellate court stated:
“...The Regional Court based its judgment on the
following findings:
In 1992 a strong conflict erupted between [M.K.] and her
parents on the ground of her contacts with Maciej. [M.K.] regarded
Izabela Malisiewicz-Gąsior as a person friendly to her and a
moral authority. That influenced the loosening of her relationship
with her parents. Finally, in June 1992 [M.K.] left with Maciej. She
did not inform her parents of her whereabouts and did not contact
them.
The plaintiff, Mr Kern, in a television address made an
appeal for help in finding his daughter; he also informed the Łódź
District Prosecutor that a crime has been committed under Article 188
of the Criminal Code.
The District Prosecutor instituted proceedings on
charges of kidnapping and false imprisonment of M.K. In the course of
these proceedings Mrs Malisiewicz –Gąsior was
arrested and the apartment and house of Gąsior’s family
was searched. The defence counsel of Mrs Malisiewicz-Gąsior was
Mr M.P.”
The
Court of Appeal found that the statement that Mr Kern had abused
power was within the justifiable bounds of criticism since public
opinion was particularly sensitive to all aspects of abuse of power,
and the opinion about Mr Kern was given by a professional i.e. a
lawyer; therefore, it did not require verification by the publisher.
The allegation of abuse of power was also justified given the
extraordinary actions undertaken by Mr Kern in a private matter.
Following the case-law of the European Court relating to Article 10
of the Convention, a politician should show more tolerance when
exposed to criticism than private persons. Then the court stated as
follows:
“It is a different matter, however, with regard to
the allegation that Mr Kern was a liar. It is obvious that this
description does not have the character of a legal opinion. What is
more, the context of the statement does not clarify in relation to
what case the plaintiff was alleged to have lied. It was thus a
generality suggesting regular untruthfulness on the part of the
plaintiff. The explanations for this statement provided by Mr Michał
Plisecki later in the course of trial cannot be of particular
importance since the published text, and in the form in which it
reached the readers, did not include them. This description should
then be considered as an ordinary and unjustified epithet [epitet].
In this case the publisher cannot be discharged of the responsibility
for besmirching the plaintiff’s good name either on the ground
that the author of the statement was a lawyer, because he had not
spoken as a professional, or because of the fact that publication was
in the form of an interview as, unlike radio or television
interviews, it was not a live broadcast and the publisher had the
means, by acting with due diligence, to prevent the breach of the
plaintiff’s personal rights by this statement. Moreover, it
cannot be inferred from the fact that the plaintiff held a public
function, so that he agreed there should be a wider limit of
permissible criticism of him, or from the fact that he himself made a
public appeal for help in finding his daughter, that he had agreed to
publication of all free opinions and comments on this subject,
including those breaching his personal rights. Given the above
described character of the statement, it should be regarded as an
evaluation (ocenna) that cannot be verified as true or false
and in any case cannot [be seen] as a negative assessment of the
plaintiff’s actions within the meaning of Article 41 of the
Press Law. In this case the publisher is not protected by Article 10
of the Convention as paragraph 2 of this Article limits the right of
freedom of expression when protecting, inter alia, the
reputation of others.
For these reasons the Court of Appeal considered the
appeals of the [applicant] and the intervener manifestly ill-founded.
Both appeals are equally unjustified in what they say
about the judgment referring to a breach of the first plaintiff’s
personal rights by statements about his family life.
Neither the fact that the first plaintiff had himself
introduced the events of his private life into the public sphere by
making the address for help in finding his daughter (even if one can
consider such an appeal as agreement to publication of information
from a private sphere within the meaning of Article 14(6) of the
Press Law) nor the fact that as a person holding a public function he
was a subject of particular interest to the press authorised the
publisher to breach his personal rights by putting into question his
mental health and parenting skills.
One cannot infer that the plaintiff waived his right to
legal protection by the fact that he had subjected himself to public
comments on his family matters. It should be underlined that
information concerning family life, and even unfavourable comment,
does not have to breach personal rights. In this publication the
limits of fair criticism and cultural expression had been
overstepped. As with the allegation that the first plaintiff was a
liar, the publisher is not protected by the fact that he had been
quoting the statements of a lawyer who was obliged to exercise strict
control over what he said, because matters concerning the family life
of the first plaintiff did not have the nature of a legal opinion and
the interview itself was not broadcast “live”.
Moreover, commenting in this manner on the plaintiff’s
family life was not covered by a socially justified interest and did
not concern the political activity of the plaintiff.
In addition it should be said that entering into issues
concerning the family sphere, in particular the relationship between
parents [and children], if only because of the impossibility to
verify the assessments made in this respect, is always unlawful, even
if the information given is true (see judgment of the Supreme Court,
11/03/1986).”
The
applicant and the intervener each lodged cassation appeals with the
Supreme Court (Sąd Najwyższy).
On
11 October 2001 the Supreme Court dismissed the cassation appeals and
ordered the applicant to pay Mr Kern PLN 3,800 for costs and
expenses. It agreed with the assessment of the lower courts that in
the present case the interference with the freedom of press was
justified by the need to protect the reputation of the plaintiffs.
The Supreme Court also dismissed the applicant’s arguments that
his intention was to report on a case that had shocked the majority
of public opinion. The court was of the opinion that publishing an
article in which the lawyer of the other party subjectively analysed
very delicate family matters and offered categorical judgments on
their causes, was not the right way to protect a justified public
interest.
It
appears that subsequently the judgment was enforced in so far as the
payment of compensation was concerned. As regards the publishing of
the apologies, the enforcement proceedings are pending.
II. RELEVANT DOMESTIC LAW
Article 23 of the Civil Code contains a non-exhaustive
list of the rights known as “personal rights” (dobra
osobiste). This provision states:
“The personal rights of an individual, such as in
particular health, liberty, reputation (cześć),
freedom of conscience, name or pseudonym, image, secrecy of
correspondence, inviolability of the home, scientific or artistic
work, [as well as] inventions and improvements shall be protected by
the civil law regardless of the protection laid down in other legal
provisions.”
Article
24 of the Civil Code provides for ways of redressing infringements of
personal rights. According to that provision, a person facing the
danger of an infringement may demand that the prospective perpetrator
abandon the wrongful activity, unless it is not unlawful. Where an
infringement has taken place, the person affected may, inter alia,
request that the wrongdoer make a relevant statement in an
appropriate form, or demand satisfaction from him/her. If an
infringement of a personal right causes financial loss, the person
concerned may seek damages.
Article
14 (6) of the Press Act of 26 January 1984 provides as follows:
“Information and data concerning the private
sphere of life of an interested person shall not be published, unless
they are connected directly with the public activity of that person.”
Article 38 (1) states:
“Civil responsibility for infringement of the law
caused by the publication of press material is accepted by the
author, editor or other person who had the material published; this
does not exclude the responsibility of the publisher. In respect of
financial liability the said persons take joint responsibility.”
Article
40 of the Press Act provides:
“In the event of an intended infringement of the
personal rights of an individual by the publication of the press
materials, and in particular in the event of an infringement of
Article 14 (6), a court may grant the injured person
compensation for damage suffered.”
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION
The applicant complained of a breach of Article 10
of the Convention, which reads as follows:
“1. Everyone has the right to freedom
of expression. This right shall include freedom to hold opinions and
to receive and impart information and ideas without interference by
public authority and regardless of frontiers. This Article shall not
prevent States from requiring the licensing of broadcasting,
television or cinema enterprises.
2. The exercise of these freedoms, since it
carries with it duties and responsibilities, may be subject to such
formalities, conditions, restrictions or penalties as are prescribed
by law and are necessary in a democratic society, in the interests of
national security, territorial integrity or public safety, for the
prevention of disorder or crime, for the protection of health or
morals, for the protection of the reputation or rights of others, for
preventing the disclosure of information received in confidence, or
for maintaining the authority and impartiality of the judiciary.”
A. Admissibility
The
Court notes that the application is not manifestly ill-founded within
the meaning of Article 35 § 3 of the Convention. It further
notes that it is not inadmissible on any other grounds. It must
therefore be declared admissible.
B. Merits
1. Arguments of the parties
The
applicant submitted that the interference with his right to freedom
of expression was not necessary in a democratic society as it was not
justified by a pressing social need. He emphasised that the present
case should be interpreted with particular regard to the fact that
the applicant was punished for assisting in the dissemination of
statements made by another person in an interview. He relied on the
Jersild v. Denmark judgment (23 September 1994, Series A
no. 298) and submitted that the Government had not pointed to
any “particularly strong reasons” which could justify
punishing the publisher.
The
applicant argued that the interview must be put in the context of the
events that had taken place in 1992. The article was one of the
series of publications in which the applicant’s newspaper had
covered a widely mediatised story of the alleged kidnapping of Mr
Kern’s daughter. The interview concerned matters of public
interest, and contained mostly value judgments concerning a
politician, which had been made by a lawyer representing one of the
parties in the conflict. Neither the domestic courts nor the
Government were able to indicate precisely which statement should
have been verified by the publisher. Moreover, the applicant referred
to the facts established in the case of Malisiewicz-Gąsior v.
Poland (no. 43797/98, 6 April
2006) to give a full picture of the media involvement
in the case of the alleged kidnapping of M.K. and to show that the
article in question was aimed at exposing the conduct of a politician
occupying a very high position.
The
applicant did not consider the outcome of the disciplinary
proceedings instituted against the lawyer relevant, as they had taken
place three years after the interview with him had been published by
the applicant. Moreover, the applicant specified that the
disciplinary courts of the Bar Association had found a breach of the
rules of professional conduct and had not, as submitted by the
Government, found him guilty of defamation.
The
applicant concluded that the authorities had overstepped the margin
of appreciation afforded to them. Moreover, the national courts’
findings had been based on an assessment of the relevant facts which
could not be considered reasonable and justified and failed to
interpret the matter in the light of the principles set forth in
Article 10 of the Convention. Thus, punishing the applicant for
having published the interview in question was a disproportionate
interference with his right to freedom of expression and constituted
a violation of the Convention.
The
Government admitted that the penalty imposed on the applicant had
amounted to an “interference” with his right to freedom
of expression. However, they submitted that the interference was
“prescribed by law” and pursued a legitimate aim as it
was intended to protect the reputation and rights of others.
Furthermore,
the Government pointed out that the freedom of the press was not
absolute and that the domestic authorities had not overstepped their
margin of appreciation in balancing two competing interests. They
submitted that the domestic courts had found that the statements
published in the newspaper owned by the applicant had been defamatory
and debased the victim in the eyes of the public. The article in
question concerned not only the politician but also his daughter and
wife, so that it did not constitute an exclusively political debate
in which the role of the press as a “public watchdog” was
particularly important.
The
Government also submitted that the applicant should have verified the
information which he had published to make sure that it did not
include statements that were defamatory or lacked accuracy or
reliability. Publishing an article that included uncertain facts and
value judgments showed disregard for the due diligence required from
the press. The Government also maintained that in the disciplinary
proceedings Mr Michał Plisecki had been found to have
defamed Mr Kern and of having made groundless accusations against
him.
The
Government concluded that the interference complained of had been
proportionate to the legitimate aim pursued and thus necessary in a
democratic society to protect the reputation of others. They
submitted that there had been no violation of Article 10 of the
Convention.
2. The Court’s assessment
(a) General principles
The
Court reiterates that freedom of expression, as secured in
paragraph 1 of Article 10, constitutes one of the essential
foundations of a democratic society and one of the basic conditions
for its progress and for each individual’s self-fulfilment.
Subject to paragraph 2, it is applicable not only to
“information” or “ideas” that are favourably
received or regarded as inoffensive or as a matter of indifference,
but also to those that offend, shock or disturb. Such are the demands
of that pluralism, tolerance and broadmindedness without which there
is no “democratic society” (see, among many other
authorities, Oberschlick v. Austria (no. 1), judgment of
23 May 1991, Series A no. 204, § 57, and Nilsen and
Johnsen v. Norway [GC], no. 23118/93, § 43, ECHR
1999 VIII).
There is little scope under Article 10 § 2 of the
Convention for restrictions on political speech or on debate on
questions of public interest (see Sürek v. Turkey (no.
1) [GC], no. 26682/95, § 61, ECHR 1999-IV). Moreover, the
limits of acceptable criticism are wider as regards a politician as
such than as regards a private individual. Unlike the latter, the
former inevitably and knowingly lays himself open to close scrutiny
of his words and deeds by journalists and the public at large, and he
must consequently display a greater degree of tolerance (see Lingens
v. Austria, judgment of 8 July 1986, Series A no. 103, p.
26, § 42; Incal v. Turkey, judgment of 9 June 1998,
Reports 1998-IV, p. 1567, § 54; and Scharsach and News
Verlagsgesellschaft v. Austria, no. 39394/98, § 30, ECHR
2003 XI). No doubt Article 10 § 2 enables the
reputation of others – that is to say, of all individuals –
to be protected, and this protection extends to politicians too, even
when they are not acting in their private capacity; but in such cases
the requirements of such protection have to be weighed in relation to
the interests of open discussion of political issues (see Lingens
v. Austria, cited above, § 42).
The
pre-eminent role of the press in a State governed by the rule of law
must not be forgotten. Although it must not overstep various bounds
set, inter alia, for the prevention of disorder and the
protection of the reputation of others, it is nevertheless incumbent
on it to impart information and ideas on political questions and on
other matters of public interest. Freedom of the press affords the
public one of the best means of discovering and forming an opinion of
the ideas and attitudes of their political leaders (see Castells
v. Spain, judgment of 23 April 1992, Series A no. 236,
§ 43). Journalistic freedom also covers possible recourse
to a degree of exaggeration, or even provocation (see Prager and
Oberschlick v. Austria, judgment of 26 April 1995,
Series A no. 313, p. 19, § 38).
News
reporting based on interviews, whether edited or not, constitutes one
of the most important means whereby the press is able to play its
vital role of “public watchdog” (see, for instance, The
Observer and The Guardian v. the United Kingdom,
judgment of 26 November 1991, Series A no. 216, pp. 29-30, para. 59).
The punishment of a journalist for assisting in the dissemination of
statements made by another person in an interview would seriously
hamper the contribution of the press to discussion of matters of
public interest and should not be envisaged unless there are
particularly strong reasons for doing so (see Jersild v. Denmark,
cited above, § 35).
One factor of particular importance is the distinction
between statements of fact and value judgments. While the existence
of facts can be demonstrated, the truth of value judgments is not
susceptible of proof. The requirement to prove the truth of a value
judgment is impossible to fulfil and infringes freedom of opinion
itself, which is a fundamental part of the right secured by
Article 10. However, even where a statement amounts to a value
judgment, the proportionality of an interference may depend on
whether there exists a sufficient factual basis for the impugned
statement, since even a value judgment may be excessive where there
is no factual basis to support it (see Turhan v. Turkey, no.
48176/99, § 24, 19 May 2005; and Jerusalem
v. Austria, no. 26958/95, § 43, ECHR 2001-II).
Although
freedom of expression may be subject to exceptions they “must
be narrowly interpreted” and “the necessity for any
restrictions must be convincingly established” (see the
above-mentioned Observer and Guardian judgment, p. 30, §
59).
Admittedly, it is in the first place for the national authorities to
assess whether there is a “pressing social need” for the
restriction and, in making their assessment, they enjoy a certain
margin of appreciation. In cases concerning the press, the national
margin of appreciation is circumscribed by the interest of democratic
society in ensuring and maintaining a free press. Similarly, that
interest will weigh heavily in the balance in determining, as must be
done under paragraph 2 of Article 10, whether the restriction was
proportionate to the legitimate aim pursued (see Worm v. Austria,
judgment of 29 August 1997, Reports 1997 V, p. 1551,
§ 47, and Feldek v. Slovakia, no. 29032/95, § 78,
ECHR 2001 VIII).
The
Court’s task in exercising its supervisory function is not to
take the place of the national authorities but rather to review under
Article 10 the decisions they have taken pursuant to their power of
appreciation. In so doing, the Court must look at the “interference”
complained of in the light of the case as a whole and determine
whether the reasons adduced by the national authorities to justify it
are “relevant and sufficient”. In so doing, the Court has
to satisfy itself that the national authorities applied standards
which were in conformity with the principles embodied in Article 10
and, moreover, that they based their decisions on an acceptable
assessment of the relevant facts (see Vogt v. Germany,
judgment of 26 September 1995, Series A no. 323, pp. 25-26, §
52, and Jerusalem v. Austria, cited above, § 33).
(b) Application of the general principles
to the present case
The
Court observes that it is undisputed that the domestic courts’
decisions complained of by the applicant amounted to an
“interference” with the exercise of his right to freedom
of expression. The Court also finds, and the parties agreed on this
point, that the interference complained of was prescribed by law,
namely Articles 23 and 24 of the Civil Code, and was intended to
pursue a legitimate aim referred to in Article 10 § 2 of the
Convention, namely to protect “the reputation or rights of
others”. Thus the only point at issue is whether the
interference was “necessary in a democratic society” to
achieve such aims.
The
Court reiterates that in exercising its supervisory jurisdiction it
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, the context in which they were made and
also the particular circumstances of those involved (see Feldek
v. Slovakia, cited above, § 77).
It
considers of primary importance for the instant case the fact that
the events described in the article in question concerned a case
which at the material time received extensive media coverage in
Poland, namely the alleged kidnapping of the 17-year-old daughter of
Mr Kern, an important politician and the Deputy Speaker of the Sejm.
The mediatisation of this case was triggered by Mr Kern himself, who
had made an appeal on the television for help in finding his
daughter. Mr Kern also instituted criminal proceedings against Mr
Gąsior and Mrs Malisiewicz-Gąsior, the parents of his
daughter’s boyfriend, in the course of which they were arrested
and remanded in custody, their house searched and phone calls tapped.
Ultimately, after the proceedings had been transferred to another
district, the charges of kidnapping were found groundless, the
proceedings discontinued and disciplinary proceedings brought against
the prosecutors who had instituted the case.
The
magazine “Angora”, owned by the applicant, published
reports on the story in a series of articles. One of these, published
on 16 August 1992, was an interview with Mr Michał
Plisecki, the lawyer representing Mr Gąsior and Mrs
Malisiewicz-Gąsior. In reaction to this publication, Mr Kern
instituted civil proceedings against the applicant in which the
domestic courts found him to have infringed the plaintiffs’
personal rights, i.e. good name, and ordered him to pay damages of
approximately EUR 2,200 plus the plaintiffs’ legal costs
and to publish an apology.
In this connection the Court observes that the impugned proceedings
concerned a civil claim. It reiterates that the dominant position
which those in power occupy makes it necessary for them to display
restraint in resorting to criminal proceedings, particularly where
other means are available for replying to the alleged criticisms of
their adversaries (see, mutatis mutandis, Castells
v. Spain, judgment of 23 April 1992, Series A no. 236, pp.
23-24, § 46; Ceylan v. Turkey [GC], no.
23556/94, § 34, ECHR 1999-IV; and Raichinov v. Bulgaria,
no. 47579/99, § 51, 20 April 2006).
Turning
to the statements themselves, the Court agrees with the Appeal and
the Supreme Courts’ assessment that the allegation that Mr Kern
had abused power was justified, and within the acceptable bounds of
criticism, since public opinion was particularly sensitive to all
aspects of abuse of power (see paragraph 19 above).
The
Court reiterates that the limits of critical comment are wider if a
public figure is involved, as he inevitably and knowingly exposes
himself to public scrutiny and must therefore display a particularly
high degree of tolerance. In the context of a public debate the role
of the press as a public watchdog allows journalists to have recourse
to a certain degree of exaggeration, provocation or harshness. It is
true that, whilst an individual taking part in a public debate on a
matter of general concern – like the applicant in the present
case – is required not to overstep certain limits as regards –
in particular – respect for the reputation and rights of
others, he or she is allowed to have recourse to a degree of
exaggeration or even provocation, or in other words to make somewhat
immoderate statements (see Mamère v. France,
no. 12697/03, § 25, ECHR 2006 ...).
The
Court is therefore less willing to accept the reasons for which the
applicant was found to have infringed Mr Kern’s personal rights
by his other statements. The exceptional context of the case is of
crucial importance as the conflict in Mr Kern’s family lay at
the heart of the case. While in general issues concerning relations
between parents and their children belong to the sphere of private
and family life, the manner in which that politician handled his
family circumstances made the case of public interest. Moreover, Mr
Kern himself mediatised the case with the result that the debate
surrounding the alleged kidnapping of M.K., and the involvement of
the prosecution in it, occupied the attention of the media,
politicians, and important State institutions. In those
circumstances, issues relating to Mr Kern’s family life
were closely linked to his standing as a politician and contributed
to a public debate.
The
Court therefore cannot agree with the domestic courts’
conclusions that the applicant’s publication did not serve any
justifiable public interest, did not concern the public activity of
Mr Kern and that entering into the sphere of family life, in those
circumstances, should always be considered unlawful, even if the
information was true (see paragraph 19 above).
Admittedly,
the applicant used provocative and inelegant language and lacked
sensitivity towards the politician. Even in a political context it is
legitimate to ensure that debate abides by a minimum degree of
moderation and propriety, especially as the reputation of a
politician must benefit from the protection afforded by the
Convention (see Lindon, Otczakovsky-Laurnes and July v. France,
[GC], nos. 21279/02 and 36448/02, § 57).
Nevertheless,
the Court considers that the statements in question did not
constitute a gratuitous personal attack on Mr Kern because the author
tried to support his statements with an objective explanation. It
also cannot be said that the purpose of the statements was to offend
or to humiliate the criticised person. Taken as a whole, it can
hardly be said that the statements for which the applicant was
ordered to pay damages by the civil courts, even those relating to Mr
Kern’s family life, were excessive or that they went beyond
what is tolerable in a public debate.
Moreover,
the Court is of the view that some of the statements for which the
applicant was found to have infringed the plaintiffs’ personal
rights were value judgments on a matter of public interest. The
domestic courts apparently acknowledged that, as they considered that
calling Mr Kern a liar was an “evaluation” that
could not be verifiable as true or false. The Court reiterates that
even a value judgment may be excessive where there is no factual
basis to support it. In the instant case, however, it considers that
the applicant’s statement, taken in its context, had a
sufficient factual basis. Thus it cannot subscribe to the domestic
courts’ assessment that the statement was excessive and should
not enjoy the protection of Article 10 of the Convention. A similar
position has been taken by the Court in another case involving a
public figure who had been called a liar (see Almeida Azevedo v.
Portugal, no. 43924/02, § 30, 23 January 2007).
The
Court points out in that connection that, in this field, political
invective often spills over into the personal sphere; such are the
hazards of politics and the free debate of ideas, which are the
guarantees of a democratic society (see Lopes Gomes da Silva v.
Portugal, no. 37698/97, § 34, ECHR 2000 X).
Finally,
the Court notes that the applicant was found to have infringed the
plaintiffs’ personal rights by publishing, in an interview, the
statements made by another person. The Court reiterates its case-law
that requires the existence of particularly strong reasons for
restricting the freedom of the press in such circumstances (see
Jerslid v. Denmark, cited above, § 35). In the instant
case it is not satisfied that such a standard was applied by the
domestic authorities.
Consequently, the Court considers that the domestic
courts failed to strike a fair balance between the competing
interests involved, namely the protection of the personal rights of a
public figure and the applicant’s right to freedom of
expression on a matter of public interest.
Regard
being had to the above considerations, and the failure of the
domestic courts to apply standards compatible with the principles
embodied in Article 10 of the Convention, the Court concludes that
that Article has been violated. The relatively small amount which the
applicant was ordered to pay to the plaintiffs cannot affect that
conclusion (see Hrico v. Slovakia, no. 49418/99, § 49,
20 July 2004).
II. APPLICATION OF ARTICLE 41 OF THE CONVENTION
Article 41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
A. Damage
The
applicant claimed 20,100 Polish zlotys (PLN), equivalent to 5,230
euros (EUR) at the date on which the claims were submitted, in
respect of pecuniary damage. This sum consisted of PLN 8,500,
equivalent to EUR 2,200, paid by the applicant to the plaintiffs as
damages according to the domestic courts’ decisions and PLN
11,600 as interest from 21 September 1995 until the payment by
the Government.
As
regards non-pecuniary damage, the applicant claimed EUR 10,000 as
compensation for damage caused to his good name as a reliable
publisher given the publicly made allegations that he lacked
professionalism and diligence.
The
Government submitted that the final judgment in the case had been
delivered on 11 October 2001 and the State could not be held
responsible for paying interest during a subsequent period of
examination of the case by the Court. With regard to non-pecuniary
damage, the Government argued that the sum claimed by the applicant
was excessive. They invited the Court to rule that the finding of a
violation constituted in itself sufficient just satisfaction for the
non-pecuniary damage sustained by the applicant.
The
Court finds that in the circumstances of the case there is a causal
link between the violation found and the alleged pecuniary damage as
the applicant refers to the amount which he was ordered to pay by the
domestic courts (see Busuioc v. Moldova, no. 61513/00, § 101,
21 December 2004). The Court awards him the sum of EUR 2,200.
The
Court accepts that the applicant has also suffered non-pecuniary
damage – such as distress and frustration resulting from the
proceedings against him, and the adverse judgments – which is
not sufficiently compensated by the finding of violation of the
Convention. Making its assessment on an equitable basis, the Court
awards the applicant EUR 5,000 under this head.
B. Costs and expenses
The
applicant also claimed PLN 7,140, equivalent to EUR 1,900, for the
costs and expenses incurred before the domestic courts, which
included PLN 3,340 for the costs in the first and second instance and
PLN 3,800 for the costs of the proceedings before the Supreme Court.
Moreover, the applicant claimed PLN 11,000, equivalent to EUR 2,860,
in respect of the costs incurred before the Court.
The
Government submitted that the claims were excessive and that the
applicant had failed to document the costs incurred in the domestic
proceedings.
According
to the Court’s case-law, an applicant is entitled to
reimbursement of his costs and expenses only in so far as it has been
shown that these have been actually and necessarily incurred and were
reasonable as to quantum. In the present case, the Court notes that
the applicant submitted relevant invoices showing the costs of
representation before the Court. With regard to the costs of the
domestic proceedings, the Court notes that the applicant claimed
reimbursement of the costs he had been ordered to pay by the domestic
court and that their amount had been clearly fixed in the relevant
judgments. Regard being had to the information in its possession and
the above criteria, the Court considers that the sums sought should
be awarded in full. The Court thus grants the applicant EUR 4,760
covering costs under all heads.
C. Default interest
The
Court considers it appropriate that the default interest should be
based on the marginal lending rate of the European Central Bank, to
which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
Declares the application admissible;
Holds that there has been a violation of Article
10 of the Convention;
Holds
(a) that
the respondent State is to pay the applicant, within three months
from the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, EUR 2,200 (two
thousand two hundred euros) in respect of pecuniary damage, EUR 5,000
(five thousand euros) in respect of non-pecuniary damage and
EUR 4,760 (four thousand seven hundred and sixty euros) for
costs and expenses, plus any tax that may be chargeable, to be
converted into Polish zlotys at the rate applicable at the date of
settlement;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amounts at a rate equal
to the marginal lending rate of the European Central Bank during the
default period plus three percentage points;
Dismisses the remainder of the applicant’s
claim for just satisfaction.
Done in English, and notified in writing on 18 March 2008,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Lawrence Early Nicolas Bratza
Registrar President
