(Application no. 27209/03)
6 October 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 Kuliś and Różycki v. Poland,
The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of:
Nicolas Bratza, President,
Nebojša Vučinić, judges,
and Fatoş Aracı, Deputy Section Registrar,
Having deliberated in private on 15 September 2009,
Delivers the following judgment, which was adopted on that date:
I. THE CIRCUMSTANCES OF THE CASE
“Recently in Star Foods crisps [packets] stickers appeared which terrified parents and their children: 'Reksio is a murderer'.
In the [packets of] crisps from the company Star Foods, which are stocked on the shelves of almost all shops, stickers appeared recently which terrified parents and children. In the packets there are little pieces of paper bearing the slogan: “Reksio is a murderer”.
Before the stickers appeared in the packets of crisps the company ordered a market study. One of the advertising agencies proposed slogans and sayings used every day by teenagers. Children, however, are terrified by those slogans.
Prepared following 'the Super Express'”
II. RELEVANT DOMESTIC LAW
“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.”
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. Arguments of the parties
The inappropriateness of such a campaign had been clearly a matter of public interest and the subject had been raised by some newspapers. Thus the applicants had been justified in joining this debate.
2. The Court's assessment
(a) General principles
No doubt Article 10 § 2 enables the reputation of others – that is to say, of all individuals – to be protected; 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).
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).
(b) Application of the general principles to the present case
The applicants' publication therefore concerned a sphere in which restrictions on freedom of expression are to be strictly construed. Accordingly, the Court must exercise caution when the measures taken by the national authorities are such as to dissuade the press from taking part in the discussion of matters of public interest (see Standard Verlags GmbH v. Austria, no. 13071/03, § 49, 2 November 2006).
Taking the above facts into account the Court finds that the applicants' aim was not primarily to denigrate in the minds of readers the quality of the crisps but to raise awareness of the type of slogans used by the plaintiff company and the unacceptability of such tactics to generate sales.
The wording employed by the applicants had been exaggerated; however, they were reacting to slogans used in the plaintiff's advertising campaign which also displayed a lack of sensitivity and understanding for the age and vulnerability of the intended consumers of their product, namely children. The Court thus considers that the style of the applicants' expression was motivated by the type of slogans to which they were reacting and, taking into account its context, did not overstep the boundaries permissible to a free press.
In sum, the Court is of the opinion that the reasons adduced by the domestic courts cannot be regarded as relevant and sufficient to justify the interference at issue.
There has accordingly been a violation of Article 10 of the Convention.
II. 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.”
As regards non-pecuniary damage, the first 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.
B. Costs and expenses
C. Default interest
FOR THESE REASONS, THE COURT UNANIMOUSLY
(a) that the respondent State is to pay the first applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following amounts, to be converted into Polish zlotys at the rate applicable at the date of settlement:
(i) EUR 7,200 (seven thousand two hundred euros), plus any tax that may be chargeable, in respect of pecuniary damage;
(ii) EUR 3,000 (three thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;
(iii) EUR 6,100 (six thousand one hundred euros), plus any tax that may be chargeable to the first applicant, in respect of costs and expenses;
(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;
Done in English, and notified in writing on 6 October 2009, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Fatoş Aracı Nicolas Bratza
Deputy Registrar President