(Application no. 20436/02)
16 July 2009
This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision.
In the case of Wojtas-Kaleta v. Poland,
The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of:
Nebojša Vučinić, judges,
and Lawrence Early, Section Registrar,
Having deliberated in private on 23 June 2009,
Delivers the following judgment, which was adopted on that date:
I. THE CIRCUMSTANCES OF THE CASE
The relevant part of the article read as follows:
“... Ms Kaletowa, the President of the Polish Public Television Journalists' Union said: 'We have received the decision very badly, especially as the new programme proposals are not concrete. Director K. stated that the changes were not aimed at getting rid of classical music but, on the contrary, at creating new possibilities for it. I take this statement at face value, although no steps have been taken so far which could confirm these good intentions'.”
The open letter read, inter alia:
“Everybody involved in music is deeply concerned by the marginalisation of culture and music in our country and, in particular, in our region.
Music is the heritage of the nation. It is also the universal language of art, spoken by citizens throughout the world. Music constitutes one of the pillars of our national identity and we must preserve and disseminate both the work of previous centuries and of modern times. Chopin, Szymanowski, Górecki, Lutosławski, Kilar or Penderecki are composers of whom we are proud.
... All these achievements are seriously jeopardised. There is a lack of money and no stable and coherent policy of protection and no systematic co-operation with the media. As regards regional television, despite the principles governing the public TV's mission, concerts, magazines, cultural and music programmes, such as 'MAK', 'TUBA', 'Meeting Classical Music' are disappearing and air time is being polluted by violence and pseudo-musical kitsch.
The NSZZ Solidarność Trade Union and the representatives of cultural and artistic circles ... protest against these measures.”
The employer stated in reply that the comments in question did not refer to matters which could fall within the trade union's scrutiny. In addition, the open letter which the applicant had signed contained untrue and tendentiously presented information that was harmful to the company's good name.
The reprimand was to be kept in her records for a period of up to one year, depending on the applicant's behaviour.
“The lower court has breached [inter alia] Article 54 of the Constitution in that it accepted that the applicant, as the President of the Polish Public Television Journalists' Trade Union, was not entitled to make comments to the press and to sign the open letter concerning the situation in its regional branch, despite the fact that she was acting in the employees' interest, in compliance with her legal obligations and without harming the employer's good name. [The letter] had a close connection with the programming changes which were to the detriment of the musical culture in Lower Silesia, but, first and foremost, also infringed the material and moral interests of the employees who could lose their jobs and broadcasting time.”
II. RELEVANT DOMESTIC LAW
“1. The freedom to express opinions, and to acquire and disseminate information shall be ensured to everyone.
2. Preventive censorship of means of social communication and licensing of the press shall be prohibited.”
“Public radio and television shall carry out their public mission by providing, on terms laid down in this Act, the entire society and its individual groups with diversified programme services and other services in the area of information, journalism, culture, entertainment, education and sports which shall be pluralistic, impartial, well balanced, independent and innovative, and marked by high quality and integrity of broadcasting”.
Section 21(3) of the Act provides:
“Programme services of public radio and television should:
(1) be guided by a sense of responsibility for the content of the message and by the need to protect the good reputation of public radio and television;
(2) provide reliable information about the vast diversity of events and processes occurring in Poland and abroad;
(3) encourage an unconstrained development of citizens' views and the formation of public opinion;
(4) enable citizens and their organisations to take part in public life by expressing diversified views and approaches as well as by exercising their right to social supervision and criticism;
(5) assist the development of culture, science and education, with special emphasis on Polish intellectual and artistic achievements;
(6) respect the Christian system of values, being guided by the universal principles of ethics;
(7) strengthen family ties;
(7a) promote healthy life-styles;
(8) contribute to combating social pathologies.”
“The journalist's task is to serve the nation and the State. When carrying out this task a journalist should act in compliance with ethical standards and principles of social co-existence, within the limits set by law.”
III. RELEVANT NON-CONVENTION MATERIAL
21. Recommendation CM/Rec(2007)3 of the Council of Europe Committee of Ministers to member states on the remit of public service media in the information society, adopted on 31 January 2007, provides, inter alia:
“Member states have the competence to define and assign a public service remit to one or more specific media organisations, in the public and/or private sector, maintaining the key elements underpinning the traditional public service remit, while adjusting it to new circumstances. This remit should be performed with the use of state-of-the-art technology appropriate for the purpose. These elements have been referred to on several occasions in Council of Europe documents, which have defined public service broadcasting as, amongst other things:
a) a reference point for all members of the public, offering universal access;
b) a factor for social cohesion and integration of all individuals, groups and communities;
c) a source of impartial and independent information and comment, and of innovatory and varied content which complies with high ethical and quality standards;
d) a forum for pluralistic public discussion and a means of promoting broader democratic participation of individuals;
e) an active contributor to audiovisual creation and production and greater appreciation and dissemination of the diversity of national and European cultural heritage. (...)”
“Public service media should play an important role in promoting broader democratic debate and participation, with the assistance, among other things, of new interactive technologies, offering the public greater involvement in the democratic process. Public service media should fulfil a vital role in educating active and responsible citizens, providing not only quality content but also a forum for public debate, open to diverse ideas and convictions in society, and a platform for disseminating democratic values.”
“Public service media should stimulate creativity and reflect the diversity of cultural activities, through their cultural programmes, in fields such as music, arts and theatre, and they should, where appropriate, support cultural events and performances.”
I. ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION
“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.”
1. The parties' submissions
a. The applicant
b. The Government
However, they emphasised that the applicant was first and foremost an employee. She had therefore been obliged to respect the broadcasting policy chosen by her employer, as stated in the statute or regulations.
2. The third party's submissions
37. It argued that the scope of free speech in the workplace was broader for a trade-union activist than for an ordinary employee. That was necessitated by the special function of trade unions, namely the protection of the employees' interests and rights.
38. It further argued that limits of freedom of speech at the workplace could be broader where a public employer was concerned. Such institutions should be subject to careful public scrutiny due to their public function or to the fact that they managed public property. Since TVP was a public broadcaster, it could not be treated as a typical private employer, although in strictly technical terms it was a joint stock company. Guarantees of the employee's freedom of speech should be stronger in such public institutions.
39. TVP's mission was defined by the Public Radio and Television Act (see paragraph 17 above). Certain parts of its broadcasting time had to be assigned to news and current-affairs programmes, to education, art and culture and to family, child and youth-related programmes. The public broadcaster was obliged to support culture, science and education as well as to engage in the debate on matters of public concern. The main goal of these provisions was to prevent the commercialisation of programming and policy dictated first and foremost by commercial considerations. It was common knowledge in Poland that TVP had become increasingly commercialised. That had undermined its public-service rationale. It had often been the case that it had defined its policies primarily by reference to business efficiency rather than to its mission. Although gradual commercialisation of the programmes of public broadcasters could be said to be unavoidable, the laws on public television and radio, taken together with the fact that public broadcasters derived benefits from mandatory licence fees paid by all users, required keeping standards compatible with their public mission. Hence, actions taken by employees in order to enforce compliance with that mission should be afforded particularly strong legal protection.
3. The principles established by the Court's case-law
“(i) 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. Subject to paragraph 2 of Article 10, 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 pluralism, tolerance and broadmindedness without which there is no 'democratic society'. As set forth in Article 10, this freedom is subject to exceptions, which ... must, however, be construed strictly, and the need for any restrictions must be established convincingly...
(ii) The adjective 'necessary', within the meaning of Article 10 § 2, implies the existence of a 'pressing social need'. The Contracting States have a certain margin of appreciation in assessing whether such a need exists, but it goes hand in hand with European supervision, embracing both the legislation and the decisions applying it, even those given by an independent court. The Court is therefore empowered to give the final ruling on whether a 'restriction' is reconcilable with freedom of expression as protected by Article 10.
(iii) The Court's task, in exercising its supervisory jurisdiction, is not to take the place of the competent national authorities but rather to review under Article 10 the decisions they delivered pursuant to their power of appreciation. This does not mean that the supervision is limited to ascertaining whether the respondent State exercised its discretion reasonably, carefully and in good faith; what the Court has to do is to look at the interference complained of in the light of the case as a whole and determine whether it was 'proportionate to the legitimate aim pursued' and whether the reasons adduced by the national authorities to justify it are 'relevant and sufficient'... In doing so, the Court has to satisfy itself that the national authorities applied standards which were in conformity with the principles embodied in Article 10 and, moreover, that they relied on an acceptable assessment of the relevant facts...”
4. Application of those principles to the facts of the case
In the present case, the applicant argued, both in the interview which she gave for the purposes of the article published in Gazeta Wyborcza and in the subsequent open letter which she had co-signed, that the changes in the programme service of the public television company did not sit well with the role which public television should play in society. She referred to widely shared concerns that the quality of its music programmes was being negatively affected as a result of fierce competition with private broadcasters. In this connection, the Court notes the applicant's argument that, as a journalist, she had a right and an obligation to comment on matters of public interest. In the Court's view, in the particular context of the applicant's case, her obligations of loyalty and constraint must be weighed against the public character of the broadcasting company she worked for.
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
“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.”
FOR THESE REASONS, THE COURT UNANIMOUSLY
Done in English, and notified in writing on 16 July 2009, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Lawrence Early Nicolas Bratza