FOURTH SECTION

CASE OF ZYBERTOWICZ v. POLAND (No. 2)

(Application no. 65937/11)

JUDGMENT

STRASBOURG

17 January 2017

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 Zybertowicz v. Poland (no. 2),
The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of:
	András Sajó, President,
	Vincent A. De Gaetano,
	Paulo Pinto de Albuquerque,
	Krzysztof Wojtyczek,
	Egidijus Kūris,
	Iulia Motoc,
	Gabriele Kucsko-Stadlmayer, judges,
and Marialena Tsirli, Section Registrar,
Having deliberated in private on 6 December 2016,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1.  The case originated in an application (no. 65937/11) 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 Andrzej Zybertowicz (“the applicant”), on 7 October 2011.
2.  The applicant was represented by Mr P. Cybula, a lawyer practising in Cracow. The Polish Government (“the Government”) were represented by their Agent, Mrs J.Chrzanowska from the Ministry of Foreign Affairs.
3.  The applicant alleged that his right to freedom of expression had been breached, in violation of Article 10 of the Convention.
4.  On 29 September 2014 the application was communicated to the Government.
THE FACTS
Article I.	I.  THE CIRCUMSTANCES OF THE CASE
5.  The applicant was born in 1954 and lives in Toruń.
6.  The applicant is a publicist and a professor of sociology.
Section 1.01	A.  The statement in issue
7.  On 11 January 2008 Rzeczpospolita, a national daily newspaper, published an article titled “Zybertowicz – so far 2:0 to the Third Polish Republic” (Zybertowicz: na razie 2:0 dla III RP). The article contained information about three civil lawsuits against the applicant instituted by A.M., the editor-in-chief of one of the biggest daily newspapers, Gazeta Wyborcza, and a certain M.S and Z.S. The article also included a comment by the applicant on the lawsuits in question:
“In a way it is quite interesting [to note] who has lodged [civil] claims against me so far: two agents and one their fierce defender” (“Swoją drogą to ciekawe, kto mnie dotychczas pozwał do sądu: dwóch agentów i jeden ich zaciekły obrońca”)”
Section 1.02	B.  Civil proceedings against the applicant
8.  On 19 March 2008, A.M. brought a civil action in the Warsaw Regional Court (Sąd Okręgowy) requesting legal protection of his personal rights. He asked that the applicant be ordered to publish an apology and to pay damages of 20,000 Polish zlotys (PLN) (approximately 4,761 euros (EUR)) to a charity.
9.  On 1 April 2008 the Warsaw Regional Court transferred the case to the Toruń Regional Court.
10.  On 20 August 2008 the Warsaw Court of Appeal (Sąd Apelacyjny) quashed this decision.
11.  On 9 June 2009 the Warsaw Regional Court gave judgment and partly allowed the plaintiff’s claim. It ordered the applicant to publish an apology on the first, second or third page of Rzeczpospolita. It further determined the exact size and wording of the apology. The court also ordered the applicant to pay PLN 1,000 (approximately EUR 238) to a charity and PLN 1,025 (approximately EUR 244) in court fees.
12.  During the proceedings the court questioned the applicant and the plaintiff. The applicant argued that the phrase in question had represented his opinion about A.M.’s public statements. Referring to several published statements and excerpts from articles written by A.M., the applicant claimed that he had had a good factual basis for giving this opinion of A.M.’s views about lustration.
13.  The court also obtained an opinion from an expert on linguistics. The expert was asked in particular to reply to the question of whether the phrase “two agents and one their fierce defender”, in the context of the case, constituted a statement of fact or an opinion. In his opinion of 6 May 2009 the expert stated that the phrase in question had been a statement of fact and not a hypothesis or supposition. In addition, taking into account the readers’ presumed general knowledge it was obvious that A.M. had been identified in the article as having defended two agents. The plaintiff submitted to the court a second expert report (dated 2 January 2009), in which another expert on language analysis confirmed that the applicant’s statement had been a statement of fact.
14.  The Warsaw Regional Court noted that the applicant, when formulating the statement in question, referred in particular to a number of published statements made by A.M. in which he had criticised the lustration law. The applicant also relied on an earlier Warsaw Court of Appeal judgment confirming that Z.S. had indeed collaborated under communism with the Security Service.
15.  The court further held that everyone, including those not following the news carefully, was aware that M.S. and Z.S. had been accused of collaborating with the Security Service. In particular, readers of Rzeczpospolita should have been aware of that fact as the newspaper had published numerous articles on the issue.
16.  The Warsaw Regional Court also held that, judging by both the applicant’s statement and the whole article, it did not appear that A.M. had been an “agent”. While the applicant in his statement had not specified who in his opinion had been “an agent” and who “their fierce defender”, from the nature of the publication and taking into account the readers’ general knowledge it was clear that it was the plaintiff who was considered to be “the fierce defender of two agents”. At the same time, the court accepted that had the applicant used a more general formulation and referred only to A.M.’s attitude towards the lustration law such words could have fallen within the limits of acceptable criticism and it would not have been necessary to protect A.M.’s personal rights.
17.  Lastly, the court considered that from the published statements and quotes from A.M.’s public statements which the applicant had submitted during the proceedings it did not appear that A.M. had ever actually defended those two particular persons.
18.  In conclusion, the court held that A.M.’s personal rights had been breached, but only partially. For this reason the court considered that the plaintiff’s claim had been exaggerated; therefore, it lowered the sum to be paid to the charity.
19.  Both parties appealed.
20.  On 11 March 2010 the Warsaw Court of Appeal modified the first‑instance judgment and ordered the applicant to pay PLN 10,000 (approximately, EUR 2,380) to the charity and PLN 2,845 (approximately EUR 677) in court fees. The applicant was also ordered to publish an apology in Rzeczpospolita.
21.  The court in principle agreed with the reasoning presented by the Regional Court. It held that while the phrase “fierce defender of two agents” had breached A.M.’s personal rights, it was not defamatory. The court further agreed with the Regional Court that the applicant had named A.M. as having defended two particular persons. However, he had failed to prove that his statement had been true. Consequently, the court considered that the phrase used by the applicant had breached the plaintiff’s personal rights (in particular his good name) and had conflicted with the values espoused by him.
22.  The court referred to the ongoing public debate in Poland about the necessity of lustration in order to explain and disclose the role of various special services after the World War II. It noted that in the context of that debate the phrase that someone was “a fierce defender of ... agents” suggested that that person had defended them, justified their actions and searched for a way to absolve them from any responsibility in the eyes of the public. Consequently, attributing to someone the role of “fierce defender of ... agents” was a breach of that person’s good name and suggested that that person’s behaviour had been contrary to the public good.
23.  The court also held that the phrase in question had been a statement of fact. However, it considered that there had been no basis for concluding that A.M. had defended any agents, or more generally, defended activities of the communist secret services that had been harmful to the public. On the contrary, he had firmly condemned such activities. He had objected to lustration being understood as a tool to destroy people and being used as an argument in political games.
24.  With reference to the sum to be paid to the charity the court noted that the applicant was a highly educated university professor holding numerous public offices. A person in the applicant’s situation should have been aware of how his statement would have been understood by an average reader of Rzeczpospolita and whether there was any basis for attributing to someone the role of “[fierce] defender” of ... agents. The court further held that the sum of PLN 1,000 to be paid to charity was symbolic and that PLN 10,000 was a more appropriate sum, given the circumstances of the case – especially considering that it was not an excessive burden for the applicant.
25.  The applicant lodged a cassation appeal. In particular, he referred to Article 10 of the Convention.
26.  On 24 March 2011 the Supreme Court (Sąd Najwyższy) refused to entertain the applicant’s cassation appeal on account of the lack of important legal issues to be considered in the case. The court, relying on Article 10 of the Convention, noted that freedom of expression did not have an absolute character. It further referred to its own case-law, according to which the necessity to prove that a statement of fact was true was not an excessive requirement and did not infringe the freedom of political debate.
Section 1.03	C.  Enforcement proceedings
27.  On 19 April 2010 A.M.’s representative instituted enforcement proceedings in the Warsaw District Court aimed at compelling the applicant to comply with the obligations imposed by the Warsaw Court of Appeal’s judgment of 11 March 2010.
28.  On 15 June 2010 the Warsaw District Court ordered the applicant to publish the apology ordered by the Warsaw Court of Appeal in Rzeczpospolita. After the applicant failed to comply with that order, on 10 June 2011 the Warsaw District Court allowed A.M. to publish the apology in Rzeczpospolita in the applicant’s name and ordered him to cover the fee for its publication in the amount of PLN 23,124 (approximately EUR 5,505). The applicant received a significant discount on that fee.
Article II.	II.  RELEVANT DOMESTIC LAW AND PRACTICE
29.  Article 23 of the Civil Code contains a non-exhaustive list of rights known as “personal rights” (dobra osobiste). This provision states:
“The personal rights of an individual, such as health, liberty, reputation (cześć), freedom of conscience, name or pseudonym, image, secrecy of correspondence, inviolability of the home, scientific or artistic work, [and] inventions and improvements, shall be protected under civil law, regardless of the [degree of protection] laid down in other legal provisions.”
30.  Article 24 of the Civil Code provides for ways of redressing infringements of personal rights. Under that provision, a person faced with the threat of an infringement may demand that the prospective perpetrator refrain from the wrongful activity in question, unless it is not unlawful. Where an infringement has taken place, the person affected may, inter alia, request that the wrongdoer make an apology in an appropriate form, or demand satisfaction from him or her. If an infringement of personal rights causes financial loss, the person concerned may seek damages.
31.  Under Article 448 of the Civil Code, a person whose personal rights have been infringed may seek compensation. That provision, in its relevant part, reads:
“The court may grant a suitable sum as pecuniary compensation for non-pecuniary damage (krzywda) suffered by anyone whose personal rights have been infringed. Alternatively, without prejudice to the right to seek any other relief that may be necessary to remove the consequences of the infringement, the person concerned may ask the court to award a suitable sum for the benefit of a specific social interest. ...”
THE LAW
Article III.	ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION
32.  The applicant complained under Article 10 of the Convention of a breach of his right to freedom of expression. That Article 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.”
Section 3.01	A.  Admissibility
33.  The Court notes that the application is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.
Section 3.02	B.  Merits
(a)	1.  The applicant’s submissions
34.  The applicant submitted that the entire statement had been made in the course of a public debate and in connection with the discussion on lustration. In his opinion the domestic courts had failed to make a distinction between factual statements and value judgments. Those of his statements that had allegedly infringed A.M.’s rights had been value judgments which had had a sufficient factual basis. During the proceedings he had referred to numerous statements made by A.M. and had insisted that his opinion had described A.M.’s position towards lustration in Poland. Despite that, the courts had relied on a very narrow reading of the phrase “[fierce] defender of ... agents” and had held that the impugned statement should have been understood as a factual statement.
35.  In the applicant’s view this very formalistic approach on the part of the domestic courts had effectively deprived him of the protection afforded by Article 10 of the Convention.
36.  The applicant referred to the fact that the Warsaw Regional Court had confirmed that some of A.M.’s statements might have constituted a sufficient basis for the applicant to use the expression “fierce defender of ... agents”. Nevertheless, the court had refused to read the applicant’s statement in this way and had persisted with a narrow, linguistic interpretation of the phrase.
37.  Taking all those elements into account the applicant considered that his statement had not overstepped the limits of the protection afforded to him by Article 10 of the Convention.
(b)	2.  The Government’s submissions
38.  The Government submitted that the statement in question had concerned legal cases against the applicant and that therefore it had not formed part of an open discussion on matters of public concern since the applicant – although a publicist – had been acting as a private individual on this occasion.
39.  They further considered that the domestic authorities rightly qualified the applicant’s statement as a statement of fact rather than as a value judgment. Yet the applicant had failed to prove the veracity of his allegations.
40.  They further noted that freedom of expression could not justify making public statements that were untrue and which infringed the personal rights of others.
41.  They concluded by saying that the domestic courts had provided detailed reasoning for their decisions. Furthermore, the interference had not been disproportionate, as the applicant had only been ordered to publish an apology and to pay PLN 10,000 to charity.
42.  Consequently, the Government invited the Court to find no violation of Article 10 of the Convention in the present case.
(c)	3.  The Court’s assessment
(i)	(a)  The general principles
43.  The general principles for assessing whether an interference with the exercise of the right to freedom of expression is “necessary in a democratic society” within the meaning of Article 10 § 2 of the Convention are well settled in the Court’s case-law. They were recently restated in Pentikäinen v. Finland ([GC], no. 11882/10, §§ 87-88, ECHR 2015), and Bédat v. Switzerland ([GC], no. 56925/08, § 48, 29 March 2016).
44.  The Court must also ascertain whether the domestic authorities struck a fair balance, taking into consideration the margin of appreciation afforded to the Contracting States, between the protection of freedom of expression as enshrined in Article 10 and the protection of the reputation of those against whom allegations were made, a right which, as an aspect of private life, is protected by Article 8 of the Convention. In two fairly recent cases, the Court defined its own role in balancing these two conflicting interests. It went on to identify a number of relevant criteria where the right to freedom of expression is balanced against the right to respect for private life (see Axel Springer AG v. Germany [GC], no. 39954/08, §§ 82-95, 7 February 2012, and Von Hannover v. Germany (no. 2) [GC], nos. 40660/08 and 60641/08, §§ 101-113, ECHR 2012).
(ii)	(b)  Application of the above principles to the present case
45.  It was not disputed that the courts’ decisions in the present case and the sanctions imposed on the applicant amounted to an “interference” with his right to freedom of expression, as guaranteed by Article 10 § 1 of the Convention. Such interference was undoubtedly prescribed by law, namely under Articles 23 and 24 of the Civil Code. The Court further accepts that the interference pursued the legitimate aim of protecting the reputation or rights of others – namely, the good name, reputation and credibility of A.M. within the meaning of Article 10 § 2 of the Convention.  Accordingly, the only outstanding issue is whether the interference with the applicant’s right to freedom of expression was “necessary in a democratic society”.
46.  In the instant case the applicant, when commenting for Rzeczpospolita on civil lawsuits against him lodged by A.M., stated that “In a way it is quite interesting [to note] who has lodged [civil] claims against me so far: two agents and one their fierce defender”. The domestic courts examined the veracity of this statement and concluded that there was no basis for believing that A.M. had defended any persons who had collaborated with the communist-era security services.
47.  The Court takes note of the fact that the phrase in question constituted an attack on A.M.’s good name on account of his alleged indulgence for abuses committed under the communist regime. Such an utterance was capable of attaining a sufficient level of seriousness in a manner causing prejudice to personal enjoyment of the right to respect for private life. The domestic authorities were thus faced with the difficult task of balancing two conflicting values, namely freedom of expression for the applicant on the one hand and A.M.’s right to respect for his reputation on the other (see Axel Springer AG [GC], cited above, § 83, § 84). In such cases one factor the Court has taken into account is the position of the person concerned by the publication: whether or not he or she was a “public figure” or had otherwise “entered the public scene”. Another important factor is whether the statement in question contributed to a debate of general interest (see Krone Verlag GmbH v. Austria, no. 27306/07, § 53, 19 June 2012).
48.  In the present case, the Court observes that A.M. is a former dissident, a leading Polish intellectual, and the editor-in-chief of one of the country’s biggest daily newspapers, who is actively engaged in political life and debates on current issues. The Court has already held that journalists and publicists, like other persons actively involved in public life, should display a greater degree of tolerance for criticism against them (see Kurski v. Poland, no. 26115/10, § 50, 5 July 2016).
49.  Despite the Government’s assertions (see paragraph 38 above), the Court considers that the statement at issue dealt with a matter of public concern, namely the lustration of journalists. Such a matter could, and in the present case did, give rise to a public debate. In this respect the Court reiterates that there is little scope under Article 10 § 2 of the Convention for restrictions on freedom of expression when a matter of public interest is at stake (see Couderc and Hachette Filipacchi Associés v. France [GC], no. 40454/07, § 96, ECHR 2015 (extracts)). The Court further observes that the domestic courts correctly recognised the context in which the applicant’s allegation had been made. They expressly referred to the ongoing public debate in Poland about the necessity of lustration (see paragraph 22 above) and even noted that had the applicant used a more general formulation his statement would have fallen within the limits of acceptable criticism (see paragraph 16 above).
50.  With regard to the classification of the statement at issue, the applicant argued before the domestic courts that his statement had described A.M.’s position towards lustration in Poland (see paragraph 12 above). The domestic courts, referring to expert opinions, considered that the phrase in question had been a statement of fact (see paragraphs 13 and 23 above). There is no reason to depart from this assessment. Even statements made in the context of a wider debate on an issue of public concern should have a solid factual basis on which to base that allegation (see Ärztekammer für Wien and Dorner v. Austria, no. 8895/10, § 69, 16 February 2016). However, the domestic courts, after carefully examining examples of public statements made by A.M., concluded that there had been no such factual basis. While A.M. had indeed been critical towards the lustration law he had never defended the two persons named as “agents” by the applicant (see paragraphs 17 and 23 above). The Court does not see a reason to find the domestic courts’ conclusion unreasonable or arbitrary.
51.  Therefore, the Court considers that the reasons given by the domestic courts were relevant and sufficient.
52.  Finally, as regards the “proportionality” of the sanction, the Court notes that the applicant was ordered to cover the costs of proceedings, to pay PLN 10,000 (approximately EUR 2,380) to a charity, and to arrange for the publication of an apology, the fee for which was originally set at PLN 23,124 (approximately EUR 5,505) but in respect of which the applicant benefitted from a substantial discount in an unknown amount. The Court further notes that in deciding on the amount to be paid to charity the domestic courts carefully weighed the possibilities and determined the amount of the fine imposed on the applicant in the light of his financial situation (see paragraph 24 above). It has not been argued, let alone shown, that the amounts the applicant was obliged to pay had a disproportionate impact on him. Therefore, the sanction imposed cannot be found to have been disproportionate (see, mutatis mutandis, Genner v. Austria, no. 55495/08, § 49, 12 January 2016).
53.  Having regard to the above, the Court is satisfied that the authorities struck a fair balance between the interests of the protection of the plaintiff’s reputation on the one hand and the applicant’s right to exercise his freedom of expression where issues of public interest are concerned on the other, and that this assessment was made in conformity with the criteria laid down in the Court’s case-law. The interference could thus be reasonably considered “necessary in a democratic society” within the meaning of paragraph 2 of Article 10 of the Convention.
54.  There has accordingly been no violation of that provision.
FOR THESE REASONS, THE COURT, UNANIMOUSLY,
1.  Declares the application admissible;

2.  Holds that there has been no violation of Article 10 of the Convention.
Done in English, and notified in writing on 17 January 2017, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
	Marialena Tsirli	András Sajó
	Registrar	President
In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the separate opinion of Judge Kūris is annexed to this judgment.
A.S.
M.T.

CONCURRING OPINION OF JUDGE KŪRIS
I have expressed my view as to the desirability of joining the instant case with that of Zybertowicz v. Poland (no. 59138/10, 17 January 2017), in my concurring opinion annexed to the latter judgment.