FOURTH SECTION

DECISION

Application no . 72966/13 WÅ‚odzimierz KUCHARCZYK against Poland

The European Court of Human Rights ( Fourth Section ), sitting on 24 November 2015 as a Committee composed of:

Nona Tsotsoria , President, Krzysztof Wojtyczek , Gabriele Kucsko-Stadlmayer , judges, and Fatoş Aracı , Deputy Section Registrar ,

Having regard to the above application lodged on 23 September 2013 ,

Having deliberated, decides as follows:

THE FACTS

1. The applicant, Mr WÅ‚odzimierz Kucharczyk , is a Polish national who was born in 1970 and lives in Legnica .

A. The circumstances of the case

2. The facts of the case, as submitted by the applicant, may be summarised as follows.

1. Background

3. The applicant is an attorney at law, practising in Legnica. His name is listed on a privately-run Internet portal , www.znanyprawnik.eu ( “A Known Lawyer” ), together with those of some 800 other attorneys, public notaries and legal advisors. The applicant ’ s profile on the portal currently displays eighteen comments concerning his professional skills , which were posted between January 2011 and September 2014 by individuals using pseudonyms. Fifteen of the comments are very favourable to the applicant. Two posts refer to his civil action for defamation , described below. The applicant ’ s overall rating on the site is “very good”. The comments do not contain any inappropriate language or terms which could be considered offensive.

4. The very first post rates the applicant as “ very poor” and reads as follows: “I advise against [using] this attorney. [He] is utterly ignorant of his job. [He is] disorganised and incompetent . ” ( Odradzam tego adwokata. Kompletnie nie zna się na tym, co robi. Niepoukładany i niekompetentny . ) The comment was posted under a pseudonym on 25 January 2011.

5. On 1 February 2011 the applicant asked the portal’s administrator for the above post to be removed. The admini s trator refused.

6. According to the portal’s rules of use, a user account is created by the new user submitting his email address. No other personal data is required for registration. A registered account must be used in a manner that is in compliance with the law and with social and customary norms, and the portal ’ s rules of use. The rules of use also stipulate that a registered user has sole liability for the content and the form of his or her posts , and that such liability extends to criminal and civil liability in respect of any breaches of law. If the State authorities so request , the administrator shall – for the purpose of any on-going proceedings – provide the m with any data of a registered user which is in possession of the administrators of the portal. The administrator has the right to close down a user account if, inter alia , it is being used in a manner that is contrary to applicable law or contrary to the portal ’ s rules of use.

2. Criminal proceedings

7. On 1 February 2011 the applicant lodged a criminal complaint with the Legnica police, alleging defamation (under Article 212 of the Criminal Code) on the part of the pers on who posted the comment of 25 January 2011.

8. On 4 April 2011 the police discontinued their inquiry into the alleged defamation because the perpetrator had not been identified . The owner of the server hosting the portal informed the police that because of the site’s limited technical parameters, it could not store the Internet Protocol (IP) addresses of registered users. It was therefore impossible to establish the identity of the author of the post in question. This was affirmed by the testimony of the portal ’ s administrator. On 11 April 2011 this decision was upheld by the Prosecutor and on 19 July 2011 by the Legnica District Court.

3. Civil action for defamation against the portal’ s administrator

9. The applicant brought a civil action against the administrator of the portal, arguing that the administrator’s r efusal to remove the post of 25 January 2011 had ruined his professional reputation and infringed his personal rights. The applicant sought that: the post in question and all the other comments concerning him be removed from the website; no posts containing information or opinions in respect of him and his practice be allowed in the future; an apology for the impugned post ( which was untrue, offensive, and degrading and had negatively affected both h is priv ate life and his legal practice) be published on the portal and in selected professional journals; and the administrator reveal the identity of the person who published the impugned post .

10. On 12 September 2011 the Suwałki Regional Court ( S ą d Okręgowy ) dismissed the applicant ’ s action. To assess whether or not the applicant ’ s dignity and reputation had indeed been infringed by the post of 25 January 2011, the domestic court applied the objective test and deemed the applicant to be a public figure . The domestic court held that the impugned post was not defamatory as it had not gone beyond what was acceptable in a public debate. The post had been limited to an assessment of the applicant ’ s professional skills and had not contained any offensive language. It could not therefore be viewed as aggressive or aimed at ridiculing the applicant or destroying his reputation as a lawyer . Moreover, the terms used merely reflect ed the poster’s general impression o f the applicant ’ s work and could not therefore be considered as being either wholly true or wholly false . Lastly, the domestic court observed that because the comment in question had not been unlawful , the portal’s administrator had not been obliged to remove it under Section 14 of the Law of 18 July 2002 on Electronic Services ( Ustawa o świadczeniu usług drogą elektroniczną ) .

11. The applicant appealed, arguing , inter alia , that the impugned comment should have been deemed to be a statement that was defamatory and unlawful in that it was untrue, highly derogatory and aggressive and in that it was aimed at ridiculing the applicant in the eyes of his clients. T he applicant further argued that legitimising the defendant ’ s action punished the applicant only because he worked as an attorney .

12 . On 9 February 2012 the Bia ł ystok Court of Appeal dismissed the applicant ’ s appeal. The appellate court reiterated that the comment in question was a value judgment and weighed the severity of the resulting distress against an objective assessment of the entire context in which the statement had been made. The domestic court concluded that the post of 25 January 2011 was not tainted by unlawfulness to such a degree as to require the intervention of a court. The post was merely a critical account of someone ’ s experience of the applicant ’s work and did not contain any offensive or coarse language. Moreover, the impugned post was followed by numerous posts in which the applicant ’ s professional skills were very highly rated. Consequently, the criticism in question had not significantly or adversely affect ed the applicant ’ s professional reputation. Accordingly, the court concluded that the impugned statement had not overstepped the bounds of an acceptable evaluation of the applicant. Lastly, the court held that the applicant, given the nature of his profession, should be prepared to withstand harsh criticism and be able to weather unfavourable opinions.

13. On 18 January 2013 the Supreme Court dismissed an appeal by the applicant on points of law , having weighed the applicant ’ s individual right to respect for his private life against the public interest in freedom of expression. The Supreme Court held that because the applicant ’ s profession was one of public trust, he had to accept that he might be the subject of public assessment and opinion . Given that he was performing a public ser v ice, the applicant was not entitled to seek a ban on all future comments regarding the quality of his legal services . The court further held that the comment in question w as not particularly derogatory ; nor did it have an aggressive tone arising from personal animosity , and nor was it aimed at ridiculing the applicant or destroying his reputation as a lawyer .

B. Relevant domestic law and practice and relevant European law

1. The Law on Electronic Services

14. The Law on Electronic Services is modelled on Directive 2000/31/EC of the European Parliament and of the Council of 8 June 2000 on certain legal aspects of information society services, in particular electronic commerce, in the Internal Market (Directive on electronic commerce) .

15. Under Section 14 of the Law on Electronic Services of 18 July 2002 ( Ustawa o świadczeniu usług drogą elektroniczną ) a service provider who is unaware of the unlawful character of certain data is not liable for information provided by the transmission of such data. Furthermore, under this provision, to be absolved of liability, a service provider who has been formally informed of such unlawful character by the authorities or who is otherwise in the possession of credible information regarding such unlawful character must disable access to such data without undue delay.

2. Judgment of the Supreme Court (IV CSK 665/10)

16. On 8 July 2011 the Supreme Court held that service providers who host an Internet forum allowing for anonymous posts was not under any duty to ensure the identification of authors of such posts. More specifically, such obligation did not arise from the Law on Electronic Services , from the Law of 29 August 1997 on Personal Data Protection ( Ustawa o ochronie danych osobowych ), or from universally accepted general principles of law.

3. Civil Code

17. Article 23 of the Civil Code ( Kodeks Cywilny ) contains a non-exhaustive list of so ‑ called “ personal rights ” ( prawa osobiste ). This provision states:

“The personal rights of an ind ividual, such as, in particular ... honour ... shall be protected by the civil law , regardless of the protection laid down in other legal provisions.”

Article 24, paragraph 1, of the Civil Code provides:

“A person whose personal rights are at risk [of infringement] by a third party may seek an injunction, unless the activity [complained of] is not unlawful. In the event of infringement [the person concerned] may also require the party who caused the infringement to take the necessary steps to remove the consequences of the infringement ... In compliance with the principles of this Code [the person concerned] may also seek pecuniary compensation or may ask the court to award an adequate sum for the benefit of a specific public interest.”

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 an adequate sum as pecuniary compensation for non-material damage ( krzywda ) suffered to anyone whose personal rights have been infringed. Alternatively, the person concerned, regardless of seeking any other relief that may be necessary for removing the consequences of the infringement sustained, may ask the court to award an adequate sum for the benefit of a specific public interest ...”

4. Criminal Code

18. Article 212 of the Criminal Code provides in so far as relevant:

Ҥ 1. Anyone who imputes to another person, a group of persons, an institution, a legal person or an organisation without legal personality, such behaviour or characteristics as may lower this person, group or entity in public opinion or undermine public confidence in their capacity necessary for a given position, occupation or type of activity, shall be liable to a fine, a restriction of liberty or imprisonment not exceeding one year.

§ 2. If the perpetrator commits the act described in paragraph 1 through the mass media he shall be liable to a fine, a restriction of liberty or imprisonment not exceeding two years.”

Article 213 provides as follows:

“§ 1. The offence specified in Article 212 § 1 is not committed if the allegation made in public is true.

§ 2. Whoever raises or publicises a true allegation in defence of a justifiable public interest shall be deemed not to have committed the offence spec ified in Article 212 §§ 1 or 2; if the allegation concerns private or family life, of truthfulness shall be admitted only when it serves to prevent a danger to someone’s life or to prevent the demoralisation of a minor.”

5 . Resolution 1165 (1998) of the Parliamentary Assembly of the Council of Europe on the right to privacy

19. The relevant passage of this Resolution, adopted by the Parliamentary Assembly of the Council of Europe on 26 June 1998, reads as follows.

“7. Public figures are persons holding public office and/or using public resources and, more broadly speaking, all those who play a role in public life, whether in politics, the economy, the arts, the social sphere, sport or in any other domain.”

C OMPLAINT S

20. The applicant complained , invoking Article 6 of the Convention, essentially about the outcome of the criminal inquiry, submitting that the identity of the author of the impugned comment was in fact known to the website’s administrator. He also invoked Article 10 of the Convention in complaining about the outcome of the civil proceedings.

THE LAW

21. The applicant complained, invoking Articles 6 and 10 of the Convention, essentially about the outcome of the criminal inquiry and the civil proceedings.

22. The Court, being the master of characterisation to be given in law to the facts of the case, considers that these complaints fall to be examined under Article 8 of the Convention, given that they raise the issue of protection of reputation as part of the right to respect for private life under Article 8 of the Convention (see P feifer v. Austria , no. 12556/03, § 35, 15 November 2007 , with further references). The provision in question reads as follows:

“1. Everyone has the right to respect for his private ... life ...

2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”

23. In order for Article 8 to come into play, an attack on a person’s reputation must attain a certain level of gravity and in a manner causing prejudice to personal enjoyment of the right to respect for private life (see A. v. Norway , no. 28070/06, § 64, 9 April 2009 , with further references).

24. In the present case the applicant did not complain of an action on the part of the State, but rather of the lack of adequate State protection of his professional reputation. Although the object of Article 8 is essentially that of protecting the individual against arbitrary interference by the public authorities, it does not merely compel the State to abstain from such interference . I n addition to this primarily negative undertaking, there may be positive obligations inherent in an effective respect for private life. These obligations may involve the adoption of measures designed to secure respect for private life even in the sphere of the relations of indi viduals between themselves (see Aksu v. Turkey [GC ], nos. 4149/04 and 41029/04, § 59, ECHR 2012).

25. Regard must be had to the fair balance that has to be struck between the competing interests of the individual and of the community as a whole . T he State enjoys a certain margin of appreciation, especially when it comes to the choice of measures designed to secure compliance with that obligation. The protection of private life has to be balanced against the freedom of expression guaranteed by Article 10 of the Convention ( see Aksu , cited above, § 62 , and Karakó v. Hungary , no. 39311/05, § 19, 28 April 2009).

26. Freedom of expression constitutes one of the essential foundations of a democratic society. Subject to paragraph 2 of Article 10, it is applicable not only to “information” or “ideas” that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb. Such are the demands of that pluralism, tolerance and broadmindedness without which there is no “democratic society” (see Von Hannover v. Germany (no. 2) [GC] , nos. 40660/08 and 60641/08, § 101, ECHR 2012). User-generated expressive activity on the Internet provides an unprecedented platform for the exercise of freedom of expression. However, alongside these benefits, certain dangers may also arise. Defamatory and other types of clearly unlawful speech, including hate speech and speech inciting violence, can be disseminated like never before, worldwide, in a matter of seconds, and sometimes remain persistently available online (see Delfi AS v. Estonia [GC], no. 64569/09, § 110, 16 June 2015).

27. The limits of permissible criticism are narrower in relation to a private citizen than in relation to politicians or governments ( see Delfi , cited above, § 132).

28. The first issue to be addressed in the circumstances of the present case is whether the civil courts have balanced the applicant ’ s right to protection of his private life in respect of the post made on the portal in question against the right to freedom of expression of the person who made the post .

29. One factor which must be taken into account is the position of the person affected by the publication – that is to say, whether or not he or she was a “public figure” or had otherwise “entered the public scene” (see Jerusalem v. Austria , no. 26958/95, §§ 38 and 39, ECHR 2001 II).

30. The domestic courts did not seek to establish whether the applicant had dealt in his legal practice with any matters of public concern, either by representing important public figures or by being engaged in criminal trials or in other activities which gave rise to public debate. It was held that the applicant ’ s profession was one of public trust and that therefore, in practi s ing as an attorney, the applicant engaged in public activities. In view of his position as a lawyer and the influence deriving from his post, the public had a right to be informed about the quality of the applicant ’ s services.

31. The Court has previously accepted that an attorney who had represented the management of a factory in a high-profile insolvency case and who had therefore bec o me a well-known local lawyer had been rightly deemed to be a public figure by the domestic court (see Bodrožić and Vujin v. Serbia , no. 38435/05, § 34, 23 June 2009). In another case, which arose from criticism of the professional activit y of the applicant as a public prosecutor, the Court ha s reasoned that public prosecutors are civil servants, part of the judicial system, whose task it is to contribute to the proper administration of justice. It has also held that there is no doubt that in a democratic society individuals are entitled to comment on and criticise the administration of justice and the officials involved in it (see Lavric v. Romania , no. 22231/05, §§ 34 and 35, 14 January 2014). By way of parallel, in a case which indirectly concerned the protection of the reputation of a doctor who had been responsible for over 8,000 cosmetic surgery operations, the Court also accepted that press articles which recounted the personal experiences of a number of women who had undergone cosmetic surgery, giving rise to a complaint under Article 10 , concerned an important aspect of human health and as such raised serious issues affecting the public interest. In this regard, the Court did not accept the Government ’ s argument that the grievances of a few patients concerning the standard of health care afforded by a particular surgeon were private matters between the patient and surgeon themselves and were not matters in which the community at large had an interest. The articles concerned allegations of unacceptable health care provided at a private cosmetic surgery clinic and as such raised matters of consumer protection of direct concern to the local and national public (see Bergens Tidende and Others v. Norway , no. 26132/95, § 51, ECHR 2000 IV).

32. Lastly, Resolution 1165 (1998) of the Parliamentary Assembly of the Council of Europe on the right to privacy defines public figures as “ persons holding public office and/or using public resources and, more broadly speaking, all those who play a role in public life, whether in politics, the economy, the arts, the social sphere, sport or in any other domain .”

33. It is unknown whether the applicant in the instant case has ever entered the public scene by virtue of being i nvolved as a lawyer in any high ‑ profile cases. However, t he applicant ’ s prior conduct is immaterial , since it can readily be accepted that although an attorney has a different status to that of a judge or a prosecutor, his profession is nevertheless one of public trust . As such, he is an indispensable element of the justice system. Whether hired privately or assigned to represent someone under the legal-aid scheme, the role of an attorney is not merely to advise a client on the material aspects of a case or to ensure that a client ’ s economic interests are well represented vis-à-vis the adversary. His role goes well beyond this private aspect of an attorney-client relationship because that role is primarily to ensure that a person ’ s right to a fair trial is respected, whether in the determination of such person’s civil rights and obligations or in respect of any criminal charge against him. It is with in this context that comments on a lawyer ’ s professional skills constitute matters in which the community at large has an interest. It follows that, as rightly pointed out by the domestic courts in the instant case, the applicant , as a practising lawyer , should have accepted that he might be subjected to evaluation by anyone with whom he had ever had any professional dealings.

34 . Further, the domestic courts rightly qualified the impugned statement as a value judgment. The post in question did not contain any allegations of unlawful and improper conduct on the part of the applicant and as such could not be subjected to any test of truthfulness, a contrario , what was suggested by the applicant ( see , a contrario , Lavric , cited above , § 40) , although , even a value judgment may be excessive if it has no factual basis to support it (see CumpÇŽnÇŽ and MazÇŽre v. Romania [GC], no. 33348/96, § 99 , ECHR 2004 ‑ XI ).

35. Moreover, as to its content, the post related strictly to the applicant ’ s professional status, conveying no more than the author ’ s critical impressions of the applicant ’ s legal skills. The message was phrased in non-offensive language , without recourse to vulgarities , threats or derogatory accusations – for example , that the applicant had committed any disciplinary or criminal offence in connection with his professional activity (see , a contrario , Lavric , cited above , §§ 41 and 42; Delfi , cited above , § 114); and Mikolajová v. Slovakia , no. 4479/03, § 57, 18 January 2011).

36. Lastly, in respect of both context and consequences, the critical post in question was followed by numerous posts in which the applicant was assessed as a very good lawyer.

37. The above considerations lead the Court to the conclusion that, although the criticism in question undoubtedly affect ed the applicant ’ s reputation as a lawyer , it did not offend, shock or disturb , nor did it significantly and adversely undermine that reputation to such a degree as to go beyond the limits of permissible criticism. In such circumstances, and having regard to the margin of appreciation enjoyed by the national courts when balancing competing interests, it must be concluded that the latter have not failed to comply with their pos itive obligations under Article 8 of the Convention. A limitation on freedom of expression for the sake of the applicant ’ s professional reputation in the circumstances of the present case would have been disproportionate under Article 10 of the Convention.

38. The second issue which is to be examined is whether , in view of the fact that the criminal inquiry was discontinued on the ground that the identity of the author of the impugned post could not be determined, the State complied with the minimum requirement that an effective legal system must be in place and operating for the protection of rights falling within the notion of “private life”.

39. In the legislation of several Member States, reputation has traditionally been protected by the law of defamation as a matter related primarily to financial interests or social or professional status. In Poland , a person making an unlawful defamatory statement may be held liable both under the criminal and civil law. In addition, a person publishing such a statement (other than its author) may be held liable under the Civil Code or under various acts of lex specialis , such as the Law on Electronic Services. It is true that in the circumstances of the instant case, a criminal remedy was in practice unavailable to the applicant , since neither the administrator of the portal nor the owner of the server hosting it could establish the true identity of the author of the impugned post. The rules of use of the portal did not require users to register their personal details , and the technical design of the server did not allow for the storage of users ’ IP addresses . That was not contrary to the applicable law and the applicant does not argue that the matter should have been regulated differently. I nstead , h e complains that the author of the impugned post should have been revealed as he is convinced that it was known to the server ’ s owner and the portal ’ s administrator.

40. The Court has already held that b reaches of a person ’ s right to respect for his or her private life which stem from aggressive, offensive or derogatory statements made by other individuals may in very special circumstances require that effective recourse to criminal law be provided in addition to a civil law remedy. That was the Court ’ s conclusion in a certain case which concerned an applicant, a minor aged 12 years at the time, who had been the subject of an advertisement of a sexual nature on an Internet dating site (see K.U. v. Finland , no. 2872/02, §§ 48-51, ECHR 2008). In that case, an effective investigation against the person who placed the advertisement could never be launched because of an overriding requirement of confidentiality. However the facts of the instant application do not remotely attain the same degree of seriousness. After the failure of the criminal inquiry, the applicant brought a civil action against the administrator of the portal . If he had proved that the impugned post was defamatory within the meaning of the applicable provisions of the civil law, he could have sought an interim injunction, and eventually an apology and comp ensation. Moreover, under the Law on Electronic Services, the portal ’ s administrator would have had to remove the impugned post in order to prevent himself being held liable. Consequently, given the circumstances of the present case, the system which was available to the applicant must be considered as satisfying the requirements of Article 8 of the Convention.

41 . It follows that this application is inadmissible as manifestly ill ‑ founded and must be rejected 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 17 December 2015 .

FatoÅŸ Aracı Nona Tsotsoria              Deputy Registrar President