BAJER A OSTATNÍ proti Polsku

FIRST SECTION

DECISION

Application no. 55212/15
Magdalena BAJER and Others
against Poland

The European Court of Human Rights (First Section), sitting on 8 November 2022 as a Committee composed of:

Lətif Hüseynov, President,
Krzysztof Wojtyczek,
Erik Wennerström, judges,
and Liv Tigerstedt, Deputy Section Registrar,

Having regard to:

the application (no. 55212/15) 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”) on 27 October 2015 by the applicants listed in the appended table (“the applicants”), who were represented by Mr M. Markiewicz, a lawyer practising in Warsaw;

the decision to give notice of the complaint concerning Article 10 read in the light of Article 11 of the Convention to the Polish Government (“the Government”), represented by their Agent, Mr J. Sobczak, of the Ministry of Foreign Affairs, and to declare the remainder of the application inadmissible;

the parties’ observations;

Having deliberated, decides as follows:

SUBJECT MATTER OF THE CASE

1. The present case concerns civil proceedings in which the applicants were ordered to apologise to two journalists for a statement that the applicants had published on behalf of the Media Ethics Council (Rada Etyki Mediów) (“the Media Council”).

1. Background to the case

2. The Media Council was set up in 1996 on the initiative of certain Polish journalists who had taken part in the Polish Media Conference (Konferencja Mediów Polskich). The body was composed mainly of media representatives whose role was to oversee journalists’ adherence to the applicable rules of professional ethics. At the time of the events, the first, second and third applicants were respectively the president, vice-president and secretary of the Media Council.

2. The publication

3. On 26 August 2009 the Media Council gave a statement which was published on various news websites. It read, in particular, as follows:

“Yet again investigative journalism in Poland has been disgraced. That can be seen in the final acquittal of R.S. of all corruption charges, for which he faced up to ten years’ imprisonment. The former Minister of Defence was charged [with criminal offences] following an article published in Rzeczpospolita in July 2001.

The authors of the defamatory publication, A.M. and B.K., are winners of the most prestigious awards for the successful practice of investigative journalism. It is not the first time that the courts have acquitted public figures who had been scorned in their publications ... The Media Ethics Council appeals to colleagues specialising in that difficult branch of journalism to display exceptional diligence and objectivity in presenting facts ...”

3. Civil proceedings against the applicants

4. On 20 February 2010 A.M. and B.K. lodged a civil claim against the applicants for the protection of their personal rights. They sought an order requiring the defendants to publish an apology in the press and on several news websites.

5. On 13 March 2013 the Warsaw Regional Court ordered the applicants to publish the apologies sought in the statement of claim and to pay the costs of the proceedings. The court noted that the plaintiffs were journalists who had investigated allegations of corruption involving R.S. (at that time First Deputy Minister of Defence) and Z.F., his adviser. In a series of articles published in Rzeczpospolita in 2001, the plaintiffs had described their findings regarding R.S. and Z.F. Following the publication of those articles, criminal proceedings had been instituted against R.S. on charges of corruption and abuse of office. He had been acquitted of two offences and convicted of one. The proceedings were discontinued as regards the remainder of the charges on account of limitation. Subsequently, R.S. had sent a letter to the Media Council asking it to take the appropriate measures, and it had published the statement complained of (see paragraph 3 above).

6. The court considered that the statement in question had breached the plaintiffs’ personal rights, undermined their reputation and had a serious impact on their professional life.

7. It further found that the publication concerned statements of fact and held that the defendants had failed to prove their accuracy. In particular, they had not demonstrated that the statement “[i]t is not the first time that the courts have acquitted public figures who had been scorned in [the plaintiffs’] publications” was true. Moreover, in so far as the applicants referred to investigative journalism allegedly being compromised by the acquittal of R.S., the court held that the acquittal in a criminal trial of a public figure who had been previously subjected to press investigation did not amount to bringing the authors of such articles into disrepute. The court noted that the prosecution services had more effective means of establishing facts available to them than journalists did.

8. The applicants appealed arguing, among other things, that the statement had contained value judgments and not statements of fact.

9. On 5 December 2013 the Warsaw Court of Appeal upheld the first-instance judgment. It agreed with the findings of the court of first instance and held that the applicants had disseminated untrue information about A.M. and B.K. It further noted that the applicants had not acted with the necessary diligence when preparing the statement as they had not assessed the plaintiffs’ journalistic work but had merely referred to the acquittal of R.S.

10. The applicants lodged a cassation appeal, in particular alleging a breach of their right to freedom of expression as guaranteed by Article 10 of the Convention. They repeated that the statement contained a value judgment, namely the Media Council’s opinion about the condition of investigative journalism in Poland, and that it had been made in the context of public debate on that issue.

11. On 2 April 2015 the Supreme Court dismissed the cassation appeal. It found that the Regional Court and the Court of Appeal had correctly assessed the case. The Supreme Court held that, apart from statements of facts, the impugned text had contained value judgments as regards the quality of investigative journalism in Poland. It noted, however, that the statement had been formulated in such a way as to give the impression that the basis for that value judgment was exclusively the plaintiffs’ work, specifically their article about irregularities in the Ministry of Defence and also other unidentified publications. In consequence, the text prepared by the plaintiffs became a basis for criticism of investigative journalism in general, but the only people named in it as unreliable and biased (nierzetelni i nieobiektywni) journalists were the defendants, A.M. and B.K.

4. Complaints

12. The applicants complained under Articles 10 and 11 of the Convention that the court order requiring the publication of an apology had constituted an unjustified and disproportionate interference with their freedom of expression and freedom of association.

THE COURT’S ASSESSMENT

13. The Government submitted that the application should be declared inadmissible as manifestly ill-founded. They contended that the interference complained of had been proportionate and necessary in a democratic society.

14. The applicants reiterated their complaints but did not make any comments as regards the merits of the case.

15. The Court, being the master of the characterisation to be given in law to the facts of the case, considers that the present case should be examined under Article 10 of the Convention (see Radomilja and Others v. Croatia [GC], nos. 37685/10 and 22768/12, § 114, 20 March 2018).

16. The Court reiterates that 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 (see Lingens v. Austria, 8 July 1986, § 41, Series A no. 103).

17. Nonetheless, Article 10 of the Convention does not guarantee wholly unrestricted freedom of expression. Under the terms of paragraph 2 of this provision, freedom of expression carries with it “duties and responsibilities” which also apply to the media, even with respect to matters of serious public concern. By reason of these “duties and responsibilities”, the safeguard afforded by Article 10 to journalists in relation to reporting on issues of general interest is subject to the proviso that they are acting in good faith in order to provide accurate and reliable information in accordance with the ethics of journalism (see, for example, Goodwin v. the United Kingdom, 27 March 1996, § 39, Reports of Judgments and Decisions 1996‑II; Fressoz and Roire v. France [GC], no. 29183/95, § 54, ECHR 1999‑I; Pedersen and Baadsgaard v. Denmark [GC], no. 49017/99, § 78, ECHR 2004-XI; and Lindon, Otchakovsky-Laurens and July v. France [GC], nos. 21279/02 and 36448/02, § 67, ECHR 2007‑IV).

18. In the present case, it is not in dispute that the domestic courts’ decisions ordering the applicants to publish an apology amounted to an “interference” with the exercise of their right to freedom of expression. The interference was prescribed by law, namely Articles 23 and 24 of the Civil Code, and pursued the legitimate aim of protecting “the reputation or rights of others”, which is also protected under Article 8 of the Convention.

19. It remains to be examined whether the interference was “necessary in a democratic society” to achieve that aim.

20. The test of “necessity in a democratic society” requires the Court to determine whether the “interference” complained of corresponded to a “pressing social need”, whether it was proportionate to the legitimate aim pursued and whether the reasons given by the national authorities to justify it were relevant and sufficient (see, among many other authorities, The Sunday Times v. the United Kingdom (no. 1), 26 April 1979, § 62, Series A no. 30, and Skałka v. Poland, no. 43425/98, § 35, 27 May 2003).

21. In assessing whether such a “need” exists and what measures should be adopted to deal with it, the national authorities are left a certain margin of appreciation. This power of appreciation is not, however, unlimited but goes hand in hand with European supervision by the Court, whose task it is to give a final ruling on whether a restriction is reconcilable with freedom of expression as protected by Article 10. In sum, the Court’s task in exercising its supervisory function is not to take the place of the national authorities but rather to review under Article 10, in the light of the case as a whole, the decisions they have taken pursuant to their power of appreciation (see, among many other authorities, Fressoz and Roire, cited above, § 45).

22. The Court observes that the domestic courts examined the case thoroughly at three levels of jurisdiction and reached the same conclusions, finding that the applicants had overstepped the boundaries of their freedom of expression. The Court considers the domestic courts’ findings convincing and reasonable. In particular, the Regional Court pointed to the fact that in their statement the applicants had referred to untrue information, the accuracy of which they were unable to prove before the court. They specifically stated that other public figures had been acquitted following the plaintiffs’ publications (see paragraph 7 above). In so far as they referred to investigative journalism allegedly being compromised by the acquittal of R.S., the Regional Court held that the acquittal in a criminal trial of a public figure who had been previously subjected to press investigation did not amount to bringing the authors of such articles into disrepute. The court also noted that the prosecution service had more effective means of establishing the facts available to them than journalists did (see paragraph 7 above). It also found that in preparing the text of their statement on behalf of the Media Council, the applicants had relied only on the article published by the applicants and on the fact that R.S. had subsequently been acquitted. They had not made any inquiry into matters such as A.M.’s and B.K.’s working methods or their alleged lack of diligence in research. However, they did publish a statement which undermined A.M. and B.K. as professional and reliable journalists. As regards the applicants’ arguments that their statement contained value judgments, the Supreme Court, examining the applicants’ cassation appeal, held that, besides statements of fact, the impugned statement had contained elements of a value judgment referring to the quality of investigative journalism in Poland (see paragraph 11 above). That value judgment, however, gave the impression that it was based exclusively on unsatisfactory work by A.M. and B.K., in particular on their article about irregularities in the Ministry of Defence and also other unidentified publications. In consequence, the text prepared by A.M. and B.K. became the basis for criticism of investigative journalism in general, with their names mentioned as unreliable and biased journalists (see paragraph 11 above).

23. Taking into account all the above elements, the Court considers that the domestic courts examined the applicants’ case thoroughly, applied standards compatible with the Court’s case-law on Article 10 of the Convention and adduced reasons which were “relevant and sufficient” to justify the interference complained of. Hence, the interference was “proportionate to the legitimate aim pursued”, namely the protection of A.M.’s and B.K.’s rights under Article 8, and was “necessary in a democratic society”, and therefore the application must be declared inadmissible as being manifestly ill-founded in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

For these reasons, the Court, unanimously,

Declares the application inadmissible.

Done in English and notified in writing on 1 December 2022.

Liv Tigerstedt Lətif Hüseynov
Deputy Registrar President

Appendix