FIRST SECTION

DECISION

Application no. 15355/14 Wojciech KRYSZTOFIAK against Poland

The European Court of Human Rights (First Section), sitting on 26 April 2022 as a Committee composed of:

Erik Wennerström, President, Krzysztof Wojtyczek, Lorraine Schembri Orland, judges, and Liv Tigerstedt, Deputy Section Registrar,

Having regard to:

the application (no. 15355/14) 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 10 February 2014 by a Polish national, Mr Wojciech Krysztofiak, who was born in 1963 and lives in Dobra (“the applicant”) and was represented before the Court by Ms Bychawska-Siniarska and Ms D. Glowacka, lawyers practising in Warsaw;

the decision to give notice of the application to the Polish Government (“the Government”), represented by their Agent, Mr J. Sobczak of the Ministry of Foreign Affairs;

the parties’ observations;

Having deliberated, decides as follows:

SUBJECT MATTER OF THE CASE

1. The applicant, an academic professor and Internet blogger for Newsweek magazine, was barred from publishing articles criticising the quality of teaching in one university, raising an issue under Article 10 of the Convention.

2. In an article that was published online and in two printed magazines, the applicant criticised the level of education at several universities, including at the Warsaw School of Arts, which is classified as a private, non-public school. The applicant referred to this type of school as, inter alia , “educationally or scientifically worthless”.

3. Following a civil action brought against the applicant and several editors by the Warsaw School of Arts, on 15 April 2013 the Szczecin Regional Court granted a preliminary injunction barring the applicant for one year from disseminating and publishing in the mass media and on the Internet any content which would damage the school’s good reputation, for example by questioning the quality of the school’s teaching. The domestic court did not grant the school’s application in so far as it also sought to have the applicant barred from calling on the school to close down and ordered to refrain from writing about the school in any of his future publications. No fine was payable in the event of a breach of the injunction.

4. In the reasoning of its decision to impose the preliminary injunction, the domestic court found it likely that the applicant, through his articles, had indeed damaged the school’s reputation. The domestic court observed that not granting the injunction could cause irreversible damage to the school. Relying on the statutory test in respect of injunctions, the court concluded that the injunction would not harm an important public interest because the latter called for thorough and true information, whereas the information contained in the applicant’s article raised serious doubts as to the applicant’s diligence. To that end, the court observed that his impugned ranking of universities had followed a single assessment criterion, which undermined any definitive negative opinion of the school.

5. The domestic court also explained that completely barring the applicant from referring to the Warsaw School of Arts in all his future publications would have been disproportionate and unnecessary.

6. The applicant lodged an interlocutory appeal against the decision to impose the preliminary injunction, arguing that it had infringed his freedom of expression, as his articles had been prepared with the necessary diligence and served an important public purpose.

7. On 30 July 2013 the Szczecin Court of Appeal dismissed the applicant’s interlocutory appeal. The appellate court disagreed that the injunction had breached the applicant’s constitutional freedom of speech, especially considering its temporary nature. The appellate court also made a general observation that the press, albeit uncontestably a public watchdog, was not entitled to undermine someone’s good name and reputation. Ultimately, the appellate court upheld the first-instance court’s conclusions that all the conditions of the statutory test for granting an injunction had been met in the circumstances of the case and that the injunction in its scope did not impose an excessive burden on the applicant. That decision was served on the applicant on 12 August 2013.

8. On 7 August 2013 the applicant published another article on his blog entitled “The worst higher educational institutions in Poland”. The article presumably featured the Warsaw School of Arts.

9. On 17 June 2014 and 24 July 2015 the trial court gave decisions to extend the duration of the original preliminary injunction, thus barring the applicant, for a period of one year each time, from publishing articles in the mass media which could damage the school’s good name.

10. The applicant did not lodge interlocutory appeals against the above ‑ mentioned decisions.

11. On 20 September 2016 the Łódź Regional Court delivered a judgment on the merits, in which it ordered the applicant and other co-defendants to: (i) cease activities which could damage the good name of the Warsaw School of Arts, specifically by referring to the school in material published in the mass media and on the Internet using terms which could undermine public confidence in the school or by calling for potential students not to apply to the school; (ii) remove the applicant’s impugned articles from the blog and from the magazines; (iii) publish an apology; and (iv) pay, jointly and severally, 40,000 Polish zlotys (approximately 10,000 euros) to the plaintiff.

12. On 27 April 2018 the Łódź Regional Court rejected an appeal by the applicant as lodged out of time.

13. The applicant complained under Article 10 of the Convention that the imposition of the preliminary injunction barring him from publishing criticism of the Warsaw School of Arts had constituted a disproportionate interference with his freedom of expression.

THE COURT’S ASSESSMENT

14. The Court does not consider it necessary to reach any conclusion on the Government’s preliminary objections, since, for the reasons set out below, it considers the application to be manifestly ill-founded.

15. The preliminary injunction imposed on the applicant on 15 April 2013 barring him for one year from disseminating and publishing in the mass media and on the Internet any content which would damage the good reputation of the Warsaw School of Arts constituted an interference with the applicant’s right of freedom of expression.

16. The general principles concerning the conflict between a person’s right to freedom of expression and the right to reputation of a third party have been summarised in Axel Springer AG v. Germany ([GC], no. 39954/08, §§ 82-95, 7 February 2012), Węgrzynowski and Smolczewski v. Poland (no. 33846/07, § 53-57, 16 July 2013), and Polanco Torres and Movilla Polanco v. Spain (no. 34147/06, §§ 40-43, 21 September 2010).

17. The impugned interference was prescribed by law (Article 730 § 1 and Article 755 §§ 1 and 2 of the Code of Civil Procedure in connection with Articles 23, 24 and 448 of the Civil Code). It also pursued the legitimate aim of protecting “the reputation or rights of others”, namely the interest of the Warsaw School of Arts in its commercial reputation.

18. The applicant’s statements about the art school were part of what appears to have been an attempt to contribute to a public debate about the quality of higher education in the country.

19. Although the impugned statements were not scandalous, shocking or calumnious, they were nevertheless defamatory and, as such, had a negative impact on the commercial interests of the Warsaw School of Arts, which is classified as a private, non-public school (see Uj v. Hungary , no. 23954/10, § 22, 19 July 2011). Given that, the school had a right to defend its commercial reputation against defamatory allegations. In this context, in addition to the public interest in open debate about the quality of higher education, there is a competing interest in protecting the commercial success and viability of commercial educational entities, for the benefit of employees and investors, but also for the wider economic good. The State therefore enjoys a margin of appreciation as to the means it provides under domestic law to enable a commercial entity to challenge the truth, and limit the damage, of allegations which risk harming its reputation (ibid.).

20. Article 10 of the Convention does not prohibit interim injunctions, especially where procedural safeguards are embedded in the system to prevent arbitrary encroachments upon the freedom of expression (see, mutatis mutandis , Cumhuriyet Vakfi and others v. Turkey , no. 28255/07, § 61, 8 October 2013). The Court is satisfied that, contrary to the applicant’s arguments, sufficient safeguards were indeed available to him in the instant case and the national courts thoroughly examined the arguments raised in his appeal against the injunction.

21. Contrary to the applicant’s assertions, he was not completely barred from expressing opinions about the school in question and the injunction imposed on him was not on pain of a fine (see paragraph 3 above). Regardless of any chilling effect that the injunction might have produced, the applicant published another negative school ranking while the impugned injunction was in effect (see paragraph 8 above). This was not followed by any sanction. Moreover, the prohibition which is the subject of the present application was only temporary and relatively short in duration (see paragraph 3 above). Although academic freedom is not restricted to scientific research, but also extends to academics’ freedom to express freely their views and opinions, even if controversial or unpopular (see Mustafa Erdoğan and Others v. Turkey , nos. 346/04 and 39779/04, § 40, 27 May 2014), legitimate doubt existed as to the applicant’s diligence, given that his rankings relied on a single assessment criterion (see paragraph 4 above). In this connection, the Court is not in a position to make pronouncements about the methodology employed by the applicant or about the quality of his work. Given the principle of subsidiarity, the Court thus defers to the findings of the national courts. Lastly, the injunction ultimately proved to be necessary, given that the main proceedings against the applicant ended with a definitive order that he should cease activities that could damage the good name of the Warsaw School of Arts (see paragraph 11 above).

22. In the light of the above considerations, the Court is satisfied that the interference in the present case was necessary in a democratic society and that the reasons adduced by the domestic courts to justify it were “relevant and sufficient” (see, mutatis mutandis , Dorota Kania v. Poland , no. 49132/11, § 34, 19 July 2016, and Wabl v. Austria , no. 24773/94, § 44, 21 March 2000; see also, by contrast, Kharlamov v. Russia , no. 27447/07, 8 October 2015). It follows that the State has complied with its obligation to strike a balance between the rights guaranteed by Article 10 and, on the other hand, Article 8 of the Convention (see, mutatis mutandis , Węgrzynowski and Smolczewski , cited above, § 68, and Karakó v. Hungary , no. 39311/05, § 28, 28 April 2009).

23. It follows that the application is 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 19 May 2022.

Liv Tigerstedt Erik Wennerström Deputy Registrar President