European Court of Human Rights

Information Note on the Court’s case-law No. 165

July 2013

Węgrzynowski and Smolczewski v. Poland - 33846/07

Judgment 16.7.2013 See: [2013] ECHR 690 [Section IV]

Article 8

Positive obligations

Courts’ refusal to order newspaper to remove article damaging applicant’s reputation from its Internet archive: no violation

 

Facts - The applicants are lawyers who won a libel case against two journalists working for the daily newspaper Rzeczpospolita following the publication of an article alleging that they had made a fortune by assisting politicians in shady business deals. Holding in particular that the journalists’ allegations were largely based on gossip and hearsay and that they had failed to take the minimum steps necessary to verify the information, the domestic courts ordered them and their editor-in-chief to pay a fine to a charity and to publish an apology. These obligations were complied with.

Subsequently, after discovering that the article remained accessible on the newspaper’s website, the applicants brought fresh proceedings for an order for its removal from the site. Their claim was dismissed on the grounds that ordering removal of the article would amount to censorship and the rewriting of history. The court indicated, however, that it would have given serious consideration to a request for a footnote or link informing readers of the judgments in the original libel proceedings to be added to the website article. That judgment was upheld on appeal.

Law - Article 8: The Court declared the first applicant’s application inadmissible, as being out of time. As regards the second applicant, it noted that during the first set of civil proceedings he had failed to make claims regarding the publication of the impugned article on the Internet. The domestic courts had therefore not been able to decide that matter. Their judgment, finding that the article was in breach of the applicants’ rights, had not created a legitimate expectation that the article would be removed from the newspaper’s website. The second applicant had not advanced any arguments to justify his failure to address the issue of the article’s presence online during the first set of proceedings, especially in view of the fact that the Internet archive of Rzeczpospolita was a widely known and frequently used resource both for Polish lawyers and the general public.

As to the second set of proceedings, the second applicant had been given the opportunity to have his claims examined by a court and had enjoyed full procedural guarantees. The Court accepted that it was not the role of judicial authorities to engage in rewriting history by ordering the removal from the public domain of all traces of publications which had in the past been found, by final judicial decisions, to amount to unjustified attacks on individual reputations. Furthermore, the legitimate interest of the public in access to public Internet archives of the press was protected under Article 10. It was significant that the domestic courts had pointed out that it would be desirable to add a comment to the article on the newspaper’s website informing the public of the outcome of the first set of proceedings. This demonstrated their awareness of how important publications on the Internet could be for the effective protection of individual rights and of the importance of making full information about judicial decisions concerning a contested article available on the newspaper’s website. The second applicant had not, however, the addition of a reference to the judgments in his favour.

Taking into account all those circumstances, the respondent State had complied with its obligation to strike a balance between the rights guaranteed under Article 10 and under Article 8.

Conclusion: no violation (unanimously).

(See also Times Newspapers Ltd v. the United Kingdom (nos. 1 and 2), nos. 3002/03 and 23676/03, Information Note 117)

 

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