European Court of Human Rights
You are here:
BAILII >>
Databases >>
European Court of Human Rights >>
WOJTAS-KALETA v. POLAND - 20436/02 [2009] ECHR 1120 (16 July 2009)
URL: http://www.bailii.org/eu/cases/ECHR/2009/1120.html
Cite as:
[2009] ECHR 1120
[
New search]
[
Contents list]
[
Printable RTF version]
[
Help]
FOURTH SECTION
CASE OF WOJTAS-KALETA v. POLAND
(Application no. 20436/02)
JUDGMENT
STRASBOURG
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:
Nicolas
Bratza,
President,
Lech
Garlicki,
Giovanni
Bonello,
Ljiljana
Mijović,
Päivi
Hirvelä,
Ledi
Bianku,
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:
PROCEDURE
The case originated in an application (no. 20436/02)
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, Ms
Helena Wojtas-Kaleta (“the applicant”), on 6 October
2001.
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 her right to freedom
of expression guaranteed by Article 10 of the Convention as a result
of a reprimand imposed on her by her employer, a public television
company.
On 17 September 2007 the President of the Fourth
Section decided to give notice of the application to the Government.
It was also decided to examine the merits of the application at the
same time as its admissibility (Article 29 § 3).
Third-party comments were received from the Helsinki
Foundation for Human Rights, which had been given leave by the
President to intervene in the written procedure (Article 36 § 2
of the Convention and Rule 44 § 2).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The applicant was born in 1943 and lives in Wrocław.
The applicant was a journalist employed by Telewizja
Polska Spółka Akcjna (TVP), the Polish public
television company. On 1 April 1999 Gazeta Wyborcza, a
national newspaper, published an article reporting that two classical
music programmes had been taken off the air. The article cited
well-known composers, critics and journalists who had expressed their
concerns about the lack of support for classical music and about the
fact that the quality of public television programmes was being
negatively affected as a result of fierce competition from private
broadcasters. The article also quoted an opinion which had been
expressed by the applicant in an interview in her capacity as the
President of the Polish Public Television Journalists' Union
(Syndykat Dziennikarzy Polskich Telewizji Polskiej).
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 applicant also signed an open letter addressed by
34 representatives of cultural and artistic circles in Wrocław
to the board of TVP. The letter stated that classical music was a
common value and a pillar of national identity and that the lack of a
stable and coherent policy with respect to the broadcasting of
classical music constituted a threat to culture and to the amateur
music movement. By way of example, the authors mentioned two music
programmes which had been discontinued and replaced by
“pseudo-musical kitsch”.
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.”
On 15 April 1999 the applicant was reprimanded in
writing by her employer for failing to observe the company's general
regulation no. 14 § 2, which required her to protect
her employer's good name (see paragraph 18 below). The applicant
argued in her appeal of 20 April 1999 to the Regional Director of TVP
that when commenting on the employer's decision she had been acting
in her capacity as the president of a trade union.
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 applicant unsuccessfully objected to the
reprimand. She argued that as a member of the trade union she had a
right to criticise measures impairing the rights of employees.
On 13 May 1999 the applicant lodged a claim against
TVP with the Wrocław District Court, requesting that the
reprimand be withdrawn. She alleged that the reprimand had been an
act of revenge by her employer for her trade-union activity and
disagreed with the assessment made of her behaviour.
By a judgment of 9 January 2001 the Wrocław
District Court dismissed her claim. The court agreed with the
employer's arguments that the issue of changes in television
programming was not a matter on which the trade union could comment
and that the applicant had failed to observe the obligation of
loyalty imposed on her as an employee. The court found that the
applicant was guilty of having behaved in an unlawful manner and that
this was a necessary and sufficient prerequisite for the disciplinary
measure imposed on her.
The applicant appealed, pleading a violation of the
applicable provisions of the Trade Unions Act, read in conjunction
with Article 54 of the Polish Constitution guaranteeing freedom
of expression. She submitted, inter alia:
“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.”
On 10 April 2001 the Wroclaw Regional Court upheld the
contested judgment. It stated that the applicant's comments had not
been aimed at the protection of employees' rights in connection with
her function in the trade union but had taken the form of an
assessment of the changes in programming policy. It concluded that
the applicant had acted to the detriment of the employer and had thus
breached her obligation of loyalty. Consequently, the employer had
been entitled to impose the reprimand on her.
II. RELEVANT DOMESTIC LAW
Article 54 of the Constitution provides:
“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.”
The rights and obligations of employees are governed
by the Labour Code. Pursuant to Article 108 of the Code, a reprimand
may be imposed on an employee for a failure to observe regulations
concerning the organisation of work, work safety and hygiene
regulations, fire-protection regulations or regulations governing
working hours. Under Article 111, the nature of the breach concerned,
the degree of the employee's guilt and previous work record shall be
taken into consideration.
Section 21(1) of the Broadcasting Act of 29 December
1992 (ustawa o radiofonii i telewizji) reads:
“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.”
Under Regulation no. 14 of the TVP Employees
Regulations the employee has a duty to uphold the company's good
name.
Section 10(1) of the Press Act (Prawo prasowe)
provides:
“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.”
Under section 10(2) of the Act a journalist who is
also an employee is obliged to follow the broadcasting policy chosen
by his or her employer, as set out in a statute or a regulation.
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. (...)”
As a reference point for all members of the public,
public service media “should offer news, information,
educational, cultural, sports and entertainment programmes and
content aimed at the various categories of the public and which,
taken as a whole, constitute an added public value compared to those
of other broadcasters and content providers”.
Its paragraph 14 further provides:
“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.”
Paragraph 20 reads:
“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.”
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION
The applicant complained that her right to freedom of
expression as provided for in Article 10 of the Convention had been
breached. This provision 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 Government acknowledged that the applicant had
exhausted relevant domestic remedies.
The Court notes that the application is not manifestly
ill founded within the meaning of Article 35 § 3 of the
Convention. It further notes that it is not inadmissible on any other
grounds. It must therefore be declared admissible.
B. Merits
1. The parties' submissions
a. The applicant
The applicant submitted that her right to freedom of
expression had been breached. As a journalist, she had had a right
and an obligation to comment on matters of public interest. That
obligation applied with all the more force to issues concerning her
workplace, given that she had been employed by the public television
broadcaster. Her objective before the domestic courts had not been
limited to having the reprimand annulled. She had also wished to
obtain protection of the journalists' right to comment on matters of
public interest and considered that the programming line of the
public television broadcaster should indubitably be qualified as
such.
The applicant emphasised that she appreciated that the
exercise of freedom of expression was not unlimited. However, she
argued that the relevant restrictions should not have been applied to
her case which involved defence of the public interest, namely
journalistic freedom, effective social communication and the public's
right of access to information.
She further submitted that the Polish legislation, in
particular section 1 of the Press Act, guaranteed freedom of
expression to journalists, including the right to express various
forms of criticism. Journalists were the guarantors of the public's
right of access to information. In practice, the citizens' right to
freedom of information was made effective through journalists being
able to enjoy their rights in the exercise of their profession. In
the applicant's case, the courts had curtailed her freedom of
expression, as they had regarded her merely as an employee and had
referred only to her obligations as an employee, while disregarding
her professional obligations as a journalist.
b. The Government
The Government submitted that the applicant, as an
employee, had been bound to comply with the regulations applicable at
her workplace, and in particular with regulation no. 14, which made
it one of her essential duties to preserve the company's good name.
In the case examined by the domestic authorities, the applicant's
interests had had to be balanced against the interests of her
employer. The fact that the applicant was a journalist and her
employer a public broadcaster should be irrelevant to the Court's
assessment.
The applicant's comments questioning the direction of
changes in television programmes had presented her employer in a bad
light. They had been reported in a national high-circulation
newspaper and had reached a wide range of readers. It was not without
significance that she had made her comments to a medium that competed
with her employer. Furthermore, the open letter she had subsequently
signed contained even harsher criticism of the public television
broadcaster because it suggested that it had departed from the public
mission it was required to fulfil.
The Government submitted that on 21 March 1999 the
applicant had been formally authorised by the Executive Board of the
Polish Journalists' Union to “act on behalf of the Union in an
open forum and in dealings with the competent authorities and bodies
in order to present facts and circumstances [that had caused]
contentious situations to arise in the Wrocław Regional Public
Television, in particular [in respect] of changes in the programming
which allegedly had [had] an adverse impact on the ... musical
culture.” However, the comments made by the applicant had
concerned issues which had no impact on the rights and obligations of
the employees of the public television broadcaster. They could not
therefore be construed as having been made in defence of their labour
rights and in her capacity as a trade-union activist. The concern for
the best interests of the employer was incumbent on all employees,
including trade-union activists.
The Government submitted that the applicant had
regarded her statements as being made in her capacity as a
trade-union activist. However, in the event that the Court were to
accept that for the assessment of the case the fact that she had been
a journalist was also relevant, they argued as follows. They
acknowledged that the applicant's concern about the lack of classical
music in television programmes could also be regarded as a matter of
general concern as music was a part of national identity and heritage
and the applicant's comments concerned the broadcasting policy of a
public broadcasting company.
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.
Moreover, before going public, she should have used
internal channels within the company and tried to raise the issues
which she had later addressed in her public statements.
2. The third party's submissions
The intervener submitted that the right to freedom
of speech in the workplace could legitimately be restricted, regard
being had to the employer's interests. An employee had a special duty
towards its employer and therefore the exercise of his or her freedom
of expression could be restricted. Such restriction was in general in
compliance with the Convention, unless it infringed upon the
principle of proportionality.
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.
The intervener further emphasised that the employee's
duty of loyalty did not entail an absolute prohibition of criticism
of the employer. It aimed essentially at protecting information
relevant to its business efficiency. A private employer generally
could discipline an employee as it saw fit within limits imposed by
law and by the prohibition of discrimination. However, the
circumstances under which public employers could discipline employees
for the exercise of their right to freedom of expression were more
restrictive.
3. The principles established by the Court's case-law
The fundamental principles in this sphere are well
established in the Court's case-law and have been summed up as
follows (see, among other authorities, Jersild v. Denmark,
cited above, p. 23, § 31; Hertel v. Switzerland,
25 August 1998, § 46, Reports of Judgments and Decisions
1998 VI,; Sokołowski v. Poland, no.
75955/01, § 41, 29 March 2005; and Guja v. Moldova
[GC], no. 14277/04, § 69, ECHR 2008 ...):
“(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...”
The Court further reiterates that Article 10
applies also to the workplace
and that civil
servants also enjoy the right to freedom of expression
(see, Vogt, Vogt v Germany,
26 September 1995, § 53, Series A no. 323; Wille
v. Liechtenstein [GC], no. 28396/95, § 41, ECHR
1999-VII; Ahmed and Others v the United Kingdom,
2 September 1998, § 56, Reports 1998-VI;
Fuentes Bobo v. Spain, no. 39293/98, § 38,
29 February 2000; and Guja v. Moldova, cited above,
§ 52).
The Court observes that the present case bears a
certain resemblance to the case of Fuentes Bobo v. Spain, referred
to above, in which it found a violation of Article 10 in respect of a
journalist who had publicly criticised the programming changes of a
public television broadcaster. Likewise, in the present case, the
applicant, a journalist, criticised publicly the conduct of her
employer which was also a public, State-owned broadcasting company.
It therefore raises a problem of how the limits of loyalty of
journalists working for such companies should be delineated and, in
consequence, what restrictions can be imposed on them in public
debate. In this context, the Court is mindful that employees owe to
their employer a duty of loyalty, reserve and discretion (see Vogt
v. Germany, cited above, § 53; Ahmed and Others v. the
United Kingdom, cited above, § 55; and De Diego
Nafría v. Spain, no. 46833/99,
§37, 14 March 2002).
4. Application of those principles to the facts of the case
The Court notes that it was common ground between the
parties that the imposition of the reprimand constituted an
interference with the applicant's right to freedom of expression, as
guaranteed by Article 10 § 1 of the Convention. Furthermore,
there was no dispute that the interference was prescribed by law and
pursued a legitimate aim, namely the “protection of the
reputation or rights of others” within the meaning of
Article 10 § 2. The dispute in the case relates
therefore solely to the question whether the interference was
“necessary in a democratic society.”
Given that the applicant exercised her freedom of
expression and that that freedom applies also in the workplace (see
paragraph 43 above), the Court considers that it is not necessary to
draw a distinction between the applicant's role as an employee of a
public television company, a trade-union activist and a journalist
and to make a separate analysis of the scope of that freedom which
she could legitimately enjoy in each of these roles. However, the
Court is of the view that the applicant's combined professional and
trade-union roles must be taken into consideration for the purposes
of examining whether the interference complained of was necessary in
a democratic society.
Moreover, the Court, having regard to the role played
by journalists in society and to their responsibilities to contribute
to and encourage public debate, considers that the obligation of
discretion and constraint cannot be said to apply with equal force to
journalists, given that it is in the nature of their functions to
impart information and ideas. The Court notes that the issues
involved in the present case can be said to have been of public
interest and concern. It reiterates that there is little scope under
Article 10 § 2 of the Convention for restrictions on
debate on questions of public interest (see, among other authorities,
Sürek v. Turkey (no. 1) [GC], no. 26682/95,
§ 61, ECHR 1999-IV) and considers that the programming
policy of public media is a matter of such interest.
Where a State decides to create a public broadcasting
system, the domestic law and practice must guarantee that the system
provides a pluralistic audiovisual service. It is a well-known fact
that after the collapse of the Communist regime the mass media in
Poland in the 1990s underwent massive and rapid changes, brought
about essentially by the disappearance of the State's monopoly on
broadcasting. However, the legislature decided to maintain public
television. As a result, it started to operate in the context of
commercial competition with many new and private broadcasters which
provoked a vigorous and ongoing public debate on its role in society
and the obligations which its special status should entail. At the
same time, under the applicable legislation the public television
company was charged with a special mission including, among other
things, assisting the development of culture, with special emphasis
on Polish intellectual and artistic achievements (see paragraph 17
above).
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.
In that connection, the Court notes that the employer
based the reprimand it issued to the applicant on a very wide
interpretation of the employees' obligation to protect its good name.
It acted on the assumption that the mere fact that the applicant had
participated in a public debate concerning its programming policy and
had criticised it was sufficient to establish that she had been
acting to her employer's detriment, in breach of her obligations.
The courts, when examining the applicant's request for
that reprimand to be set aside, endorsed the employer's conclusions.
However, the Court observes that they took no note of the applicant's
argument that she had been acting in the public interest. They
limited their analysis to a finding that her comments amounted to
acting to the employer's detriment. As a result, they did not examine
whether and how the subject matter of the applicant's comments and
the context in which they had been made could have affected the
permissible scope of her freedom of expression. Such an approach
would have been compatible with the Convention standards (see, among
many other authorities, Sokołowski v. Poland,
no. 75955/01, judgment of 29 March 2005, § 47).
Another factor relevant to the balancing exercise
which the Court is required to carry out is the authenticity of the
information disclosed to the public. It is open to the competent
State authorities to adopt measures intended to react appropriately
and without excess to defamatory accusations devoid of foundation or
formulated in bad faith (see Castells v. Spain, 23 April
1992, § 46, Series A no. 236, and Guja v. Moldova,
cited above, § 75). However, in the present case it was not
asserted by the employer or later established by the courts that the
applicant's comments had been devoid of any factual basis (compare
and contrast De Diego Nafría v. Spain,
no. 46833/99, 14 March 2002, § 40, where the
Court found no violation of Article 10 of the Convention relying,
inter alia, on the fact that the applicant's allegations
lacked any factual basis). Moreover, not only the applicant's
statements relied on a sufficient factual basis, but also, in part,
amounted to value judgments, the truth of which is not susceptible of
proof (see, for instance, Jerusalem v. Austria,
no. 26958/95, § 43, ECHR 2001-II; Sokołowski
v. Poland, cited above, § 48).
It is also relevant to note that it has never been
alleged that the applicant's comments could reasonably be seen as a
gratuitous personal attack on another, or that an intention to offend
could be ascribed to her them. The Court notes that the tone of the
impugned statements was measured and that she did not make any
personal accusations against named members of the management (compare
and contrast, De Diego Nafría v. Spain,
cited above, §§ 35-36). Furthermore, it is also
relevant that the applicant's good faith was never challenged either
by the employer or by the domestic authorities involved in the
proceedings (see Guja v. Moldova, cited above, §§ 92–94,
mutatis mutandis).
Being mindful of the importance of the right to
freedom of expression on matters of general interest, of the
applicant's professional obligations and responsibilities as a
journalist and of the duties and responsibilities of employees
towards their employers, and having weighed up the other different
interests involved in the present case, the Court comes to the
conclusion that the interference with the applicant's right to
freedom of expression was not “necessary in a democratic
society”.
Accordingly, there has been a violation of Article 10
of the Convention.
III. 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.”
The applicant did not submit a claim for damages or
for the reimbursement of legal costs. She submitted that she only
aimed at obtaining the Court's judgment on grounds of principle.
Accordingly, the Court considers that there is no call to award her
any sum on that account.
FOR THESE REASONS, THE COURT UNANIMOUSLY
Declares the application admissible;
Holds that there has been a violation of Article
10 of the Convention.
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
Registrar President
