FIRST SECTION

DECISION

Applications nos. 71320/14 and 71360/14 Janusz ANSION against Poland and Zbigniew WALCZAK against Poland

The European Court of Human Rights (First Section), sitting on 31 August 2021 as a Committee composed of:

Erik Wennerström, President, Krzysztof Wojtyczek, Lorraine Schembri Orland, judges, and Attila Teplán, Acting Deputy Section Registrar,

Having regard to the above applications lodged on 30 October 2014 and 30 October 2014 respectively,

Having regard to the observations submitted by the respondent Government, while the applicants’ observations were submitted outside the time-limit set and therefore not included in the case file,

Having deliberated, decides as follows:

THE FACTS

1. The applicant in the first case, Mr Janusz Ansion, is a Polish national, who was born in 1965. The applicant in the second case, Mr Zbigniew Walczak, is a Polish national, who was born in 1963. Both applicants live in SÅ‚upca.

2. The Polish Government (“the Government”) were represented by their Agent, Mrs J. Chrzanowska and subsequently Mr J. Sobczak of the Ministry of Foreign Affairs.

3. The facts of the case, as submitted by the parties, may be summarised as follows.

4. The first applicant is editor-in-chief and publisher of Kurier Internetowy Słupecki (“ Kurier ”) , a Polish weekly newspaper. The second applicant is a journalist who worked for Kurier at the material time.

5. On 31 August 2012 Kurier published an article written by the applicants, headlined “We disclose another scandal about PSL – the Polish People’s Party” ( Ujawniamy kolejną aferę PSL-u ), which concerned the fact that a certain well-known politician, E.G. (at that time deputy speaker of the Sejm), had transferred public money to his son’s private company in order to finance his own political campaign. They further stated that in reprisal E.G.’s bodyguards had forbidden the journalist from covering the son’s wedding. The article was also published on the website www.slupca.pl.

6. The article included in particular, the following statements:

“ ... at the beginning of the year M.G., the son of the Deputy Speaker of the Sejm , started a business. Six months later tens of thousands of zlotys from his father’s party entered that business account ... It looks like somebody is supporting a fledgling company, whose owner is M.G., the son of Sejm Deputy Speaker E.G. Journalists from Kurier Słupecki reveal the secrets of the family business of this PSL ‘baron’.”

“Overall, E.G., the head of the PSL campaign team and a parliamentary candidate at the same time, added in just two months the considerable sum of 121,533 zlotys in funds to M.G.’s bank account. This was money obtained from the government budget, so our money migrated to the family ... Were other sums also handed over by PSL?”

“E.G., W.P.’s right-hand man, on the occasion of the last election campaign, kindly and generously provided financial support for his son’s company ... Will ordinary party members still be so generous when they hear of another scandal within the PSL elite? At a time of a nationwide collection for the repayment of multimillion debts, the majority of the party’s members may wonder how honest it is to dip into the pockets of people at the party’s lowest levels.”

“ ... the joy from M.’s marriage alternates with articles in Kurier Słupecki , Głos Wielkopolski and Gazeta Wyborcza , bitterly denouncing local pacts. By way of reprisal, the deputy speaker’s bodyguards have unlawfully forbidden a journalist working for Kurier from covering his son’s wedding

7. On 5 September 2012 E.G. lodged a private bill of indictment against the applicants with the Konin District Court. He complained that the applicants had published untrue information which had lowered the public’s opinion of him and had damaged his reputation, and as a result had undermined his ability to carry out his job as a politician. He relied on Article 212 of the Criminal Code, penalising the offence of defamation.

8. On 18 June 2013 the Konin District Court convicted the applicants of defamation committed through the media.

9. On 27 November 2013 the Konin Regional Court amended the contested judgment and acquitted the applicants. It held that the statements made by the applicants in the article were true and related to the conduct of a public figure.

10. On 13 September 2012 E.G. (“the plaintiff”) lodged a civil claim for the protection of his personal rights against both applicants. He sought an order requiring the defendants to publish an apology, to reimburse his legal costs and to pay 30,000 Polish zlotys (PLN) (approximately 7,500 euros (EUR)) to a charity.

11. On 9 December 2013 the Poznań Regional Court found for the plaintiff. The court ordered the applicants to publish the apologies sought in the statement of claim and to pay PLN 30,000 to a charity. The court considered that the article in question had breached the plaintiff’s personal rights and undermined his reputation.

12. The court established that on 4 February 2011 the PSL General Executive Committee ( Naczelny Komitet Wyborczy PSL ) had adopted a “framework schedule for the preparation of the 2011 parliamentary election campaign” and that on 18 March 2011 E.G. had been elected as the head of the national campaign team ( szef Krajowego Sztabu Wyborczego ). On the same date (18 March 2011) the rules on financing the campaign had been adopted. A certain M.P. had become the head of E.G.’s campaign team. One of the companies which provided services for E.G.’s parliamentary election campaign was the publishing and advertising company Cessans sp. z o.o., where M.G., E.G.’s son, was the director. Invoices totalling PLN 121,533 (EUR 30,383) had been issued by the company for services delivered during the electoral campaign in relation to six candidates, including E.G. One assignment had also been carried out by the first applicant’s company, Graffi Studio.

13. On 25 June 2012 the parliamentary election campaign’s financial report had been adopted and the applicants had consulted it; the second applicant had also consulted the National Court Register and found that Cessans sp. z o.o.’s assets had increased during the campaign. The applicants had contacted a journalist working for Gazeta Wyborcza , P.B., who had met K.L. from the National Electoral Commission in order to establish the ways of financing a campaign. P.B. had also met the director of the anti-corruption programme at the Stefan Batory Foundation, who was of the view that the situation could be described as an excessive support of his family by a politician. The second applicant submitted that he had tried to contact E.G.’s constituency office but without success. He had also unsuccessfully tried to contact the director of the office on a private number. On 20 August 2012 the first applicant had asked the PSL General Executive Committee to provide him with information about the number and value of the tasks assigned to Cessans sp. z o.o . Without waiting for an answer (which was sent on 5 September 2012), the applicants had published the article in question on 31 August 2012 .

14. The court considered that the content of the article had presented a very negative picture of E.G. It concluded that the applicants had disseminated untruthful information about E.G. in order to denigrate him and to lower public esteem and therefore diminish his ability to function as a politician. Publication of the article had caused a negative public reaction both locally and nationally. Moreover, the court found that E.G.’s son had decided that his wedding would not be covered by the media and that no journalists, including those from Kurier , had been allowed to be present at the ceremony. Consequently, that decision could not be treated as a reprisal, as maintained by the applicants.

15. Both parties appealed.

16. On 27 May 2014 the Łόdź Court of Appeal amended the first ‑ instance court’s judgment by deleting the part of the order requiring the defendants to publish an apology in Gazeta Wyborcza and GÅ‚os Wielkopolski and halved the amount to be paid to charity. The court agreed with the court of first instance’s findings and found that the applicants had disseminated untrue information about E.G.

17. The court accepted the applicants’ argument that they had been motivated by a desire to protect the general interest and by their obligation to inform the public of issues of such interest. It confirmed that they had exercised their freedom of expression protected by Article 10 of the Convention, but they had not observed due diligence in gathering the relevant information, as required by section 12(1) of the Press Act. The court found that the applicants had not waited for the PSL General Executive Committee’s answer, although that body had been better placed to answer their questions than the National Electoral Commission. Moreover, they had not familiarised themselves with the legal provisions on the financial rules for electoral campaigns. Furthermore, they had not proved that they had tried to reach E.G. as they could have sent him questions by email, fax or post. The level of diligence required that the person concerned have an opportunity to express his or her point of view.

18. Furthermore, it is true that society had a right to information but, any such information had to be truthful rather than false. In addition, even in respect of people exercising public functions, any criticism should be based on truthful allegations. The court concluded that the article in question had contained untruthful information.

19. On 29 July 2014 the Supreme Court refused to examine the applicants’ cassation appeal.

20. Article 23 of the Civil Code contains a non-exhaustive list of the rights known as “personal rights” ( dobra osobiste ). This provision states:

21. “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.”

22. Article 24 of the Civil Code provides for ways of seeking redress for an infringement of a personal right. It states that a person facing a possible infringement of that kind 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 a relevant statement in an appropriate form or claim just satisfaction from him or her. If an infringement of a personal right causes a financial loss, the person concerned can seek damages.

COMPLAINT

23. The applicants complained under Article 10 of the Convention that the domestic courts decisions had interfered with their right to freedom of expression.

THE LAW

24. Having regard to the similar subject matter of the applications, the Court finds it appropriate to examine them jointly in a single decision.

25. The applicants complained that the domestic courts’ decisions in their cases constituted an unlawful and disproportionate interference with their right to freedom of expression. They relied on Article 10 of the Convention, the relevant part of which 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 (...).

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 (...) for the protection of the reputation or rights of others (...).”

26. The Government submitted that the complaints relating to the criminal proceedings against the applicants were incompatible ratione personae since the applicants had been acquitted. As regards the civil proceedings they agreed that there had been an interference with the applicants’ freedom of expression, but it had been justified under the second paragraph of Article 10. They noted that the statements in question related to issues of public interest and they should be considered as facts and not value judgments. However, as established by the domestic courts, these statements had been false. In addition, as pointed out by the domestic courts, the applicants had failed to comply with the journalistic obligation of diligence and there were doubts whether they had acted in good faith.

27. The applicants submitted their observations outside the time-limit and since no extension of the allotted time had been requested, they were not included in the case file (Rule 38 § 1 of the Rules of Court).

28. The Court does not find it necessary to address the Government’s objection regarding incompatibility ratione personae given that the applications are in any event inadmissible for the following reasons.

(a) Criminal proceedings

29. In so far as the applicants complain about the criminal proceedings against them, the Court notes that those proceedings were terminated on 27 November 2013 (see paragraph 9 above). However, the present applications were lodged on 30 October 2014, that is, more than six months later. While the Government have not addressed that issue in their observations, it is not open to the Court to set aside the application of the six‑month rule solely because a Government have not made a preliminary objection based on it (see Walker v. United Kingdom (dec.), no. 34979/97, ECHR 2000-I). Accordingly, and notwithstanding any other grounds of inadmissibility, the complaint about the criminal proceedings against the applicants has been lodged out of time and must be rejected in accordance with Article 35 §§ 1 and 4 of the Convention.

(b) Civil proceedings

30. The Government did not dispute that the domestic judgments delivered in the civil proceedings against the applicants had interfered with their right to freedom of expression, as guaranteed by Article 10 § 1 of the Convention.

31. The Court notes that the interference was prescribed by law, namely the relevant provisions of the Civil Code, and pursued a legitimate aim, namely the protection of the reputation of others, and more particularly of E.G.. The Court must therefore determine whether the interference complained of was necessary in a democratic society in order to achieve this legitimate aim within the meaning of Article 10 § 2.

32. The Court has frequently reaffirmed the general principles concerning the necessity of any interference with freedom of expression in a democratic society (see, among many authorities, Baka v. Hungary [GC], no. 20261/12, § 158, ECHR 2016, and Bédat v. Switzerland [GC], no. 56925/08, § 48, ECHR 2016). In its case-law, the Court has also identified 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).

33. As regards the present case, the Court notes at the outset that the article in question concerned an alleged relationship between a political party and a private company established by the son of one of its members. The Government agreed that the article addressed a topic relevant to Polish politics and thus constituted information of public interest. The article consequently attracts a high level of protection under Article 10, with the authorities having a particularly narrow margin of appreciation (see, among many authorities, Morice v. France [GC], no. 29369/10, § 125, ECHR 2015). However, the nature of the allegation made concerning E.G.’s possible involvement in the private business described in the article clearly attained the requisite level of seriousness to cause prejudice to his rights under Article 8 of the Convention.

34. As to E.G., the Court notes that he was a prominent politician, who was a deputy speaker of the Sejm at the time. The Court therefore accepts that he was a “public figure” for the purposes of the Court’s case-law (see Couderc and Hachette Filipacchi Associés v. France [GC], no. 40454/07, §§ 117-123, ECHR 2015 (extracts)), and that consequently he had to display a greater degree of tolerance towards criticism and public scrutiny.

35. The Court emphasises that while the press plays an essential role in a democratic society and its duty is to impart information and ideas on all matters of public interest (see, among many authorities, Bladet Tromsø and Stensaas v. Norway [GC], no. 21980/93, § 62, ECHR 1999 ‑ III), journalists are nevertheless subject to duties and responsibilities. The protection afforded to journalists by Article 10 of the Convention is indeed subject to the provision that they act in good faith in order to provide accurate and reliable information in accordance with the aforementioned tenets of responsible journalism, referring chiefly to content which is collected and/or disseminated by journalistic means ( Pentikäinen v. Finland [GC], no. 11882/10, § 90, ECHR 2015 and the cases cited therein).

36. With regard to the classification of the statement at issue, the domestic courts considered that the article in question was a statement of fact. There is no reason to depart from that assessment. The Court notes that the domestic courts regarded the statement as untrue because the applicants had failed to provide sufficient proof. The domestic courts also found that the applicants had generated the impression in the readers’ minds that a private company run by E.G.’s son had been illegally supported by public funds. As ascertained by the domestic courts, such an allusion was essentially misleading, and the applicants were found not to have acted with due diligence as required by the Press Act (see paragraphs 14, 16 and 17 above).

37. Consequently, having regard to the manner in which the applicants had gathered information before publishing the article, the Court does not find the domestic courts’ conclusion unreasonable or arbitrary and sees no reason to disagree with their findings.

38. The Court further observes that the applicants were found only to be civilly liable (compare and contrast Kurłowicz v. Poland , no. 41029/06, § 54, 22 June 2010, and Długołęcki v. Poland , no. 23806/03, § 47, 24 February 2009). They were ordered to arrange for the publication of an apology in the press for publishing inaccurate information of a defamatory character.

39. The Court also notes that the appellate court halved the damages awarded to the plaintiff to PLN 15,000. It was neither argued nor shown that an award of that amount would have any serious impact on the applicants’ financial situation. It therefore considers that the requirement of proportionality between damages for defamation and the injury suffered, which was set out in Tolstoy Miloslavsky v. the United Kingdom (13 July 1995, § 49, Series A no. 316-B), has been respected.

40. In conclusion, the Court finds that a fair balance was struck at the domestic level between the competing rights in question, and that the national courts provided sufficient and relevant reasons for justifying the necessity of the interference with the applicants’ freedom of expression.

41. It follows that the application is manifestly ill-founded and that it must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

For these reasons, the Court, unanimously,

Decides to join the applications;

Declares the applications inadmissible.

Done in English and notified in writing on 23 September 2021.

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Attila Teplán Erik Wennerström Acting Deputy Registrar President