Communicated on 16 December 2019

FIRST SECTION

Application no. 55212/15 Magdalena BAJER and others against Poland lodged on 27 October 2015

STATEMENT OF FACTS

A list of the applicants is set out in the appendix.

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

The Media Ethics Council ( Rada Etyki Mediów ) (”the Media Council”) was set up in 1996 at the initiative of Polish journalists who took part in the Polish Media Conference ( Konferencja Mediów Polskich ). The body was composed mainly of media representatives designated to observe whether journalists followed the applicable rules of professional ethics. At the time of the events in the present case, the first, the second and the third applicant were respectively: the president, the vice-president and the secretary of the Media Council.

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

“Yet another disgrace of investigative journalism in Poland occurred. It is reflected in the final acquittal of R.S of all corruption charges, for which he faced up to ten years ’ of imprisonment. The former Minister of Defence was charged [with criminal offences] following an article published in Rzeczpospolita in July 2001.

The authors of the publication that had defamed him – A.M. and B.K. are winners of the most prestigious awards for successful practise of investigative journalism. It is not the first time that the courts acquit public figures who had been slighted 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...”

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

On 13 March 2013 the Warsaw Regional Court found for the plaintiffs. The 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 advisor. In a series of articles published in Rzeczpospolita in 2001, the plaintiffs described their findings regarding R.S. and Z.F. Following these publications criminal proceedings had been instituted against R.S. on charges of corruption and excess of powers. He had been acquitted of two offences, convicted of one offence and the proceedings were discontinued as regards the remainder of charges due to prescription. Subsequently, R.S. had sent a letter to the Media Council asking it to react in an appropriate way.

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

It further found that the publication concerned statements of fact and held that the defendants had failed to prove their veracity. In particular, they had not demonstrated that the statement: “it is not the first time that the courts acquit public figures who had been scorned in their [the plaintiffs] publications” was true. Moreover, in so far as the applicants referred to the alleged compromising of investigative journalism on account of acquittal of R.S., the court held that an acquittal in a criminal trial of a public figure, who had been previously subjected to press investigation, was not tantamount to disrepute of authors of such articles. The court noted that unlike the journalists, the prosecution services disposed of more effective means in order to establish the facts.

The court also held that the Media Council had not been a registered association, did not have legal capacity and therefore the statements issued by that body were in fact statements made by its members.

The applicants appealed arguing that the Media Council was an ordinary association and had a right to express its opinion on the matters of public interest. They further submitted that the statement had contained value judgments and not statements of fact.

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

Lastly, the court considered that the Media Council was not a registered association and therefore it did not have legal capacity to act in the court proceedings.

The applicants lodged a cassation appeal in particular alleging a breach of their right to freedom of expression guarant eed by Article 10 of the Convention. They repeated that the statement contained value judgments – the Media Council ’ s opinion about the condition of investigative journalism in Poland and had been made in the context of a public debate on this matter.

On 2 April 2015 the Supreme Court dismissed the cassation appeal. The court found that the Regional Court and the Court of Appeal had correctly assessed the case. It further noted that the Polish Media Conference, to which the applicants had belonged at the time of publication of the statement had been an ordinary (not formally registered) association ( stowarzyszenie zwyk Å‚ e ) and as such had not had legal capacity to act in the court proceedings. For that reason, responsibility for any breach of personal rights resulting from publication of statements issued by such association should be borne by its members.

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, [as well as] inventions and improvements, shall be protected under civil law regardless of the protection laid down in other legal provisions.”

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, unless it is not unlawful. Where an infringement has taken place, the person affected may, inter alia , request that the wrongdoer make a statement in an appropriate form, or demand satisfaction from him or her. If an infringement of a personal right causes financial loss, the person concerned may seek damages.

Section 1 of the Associations Act, in so far as relevant, reads:

“1. Polish citizens shall exercise the right of association in accordance with the Constitution ... and the legal order as specified by statute.

...

3. Associations shall have the right to express their opinion on public matters.”

Section 2, in so far as relevant, provides:

“1. An association is a voluntary, self-governing, durable union pursuing non ‑ profit ‑ making aims.

2. An association shall freely determine its objectives, its programmes of activity and organisational structures, and shall adopt internal resolutions concerning its activity.”

Chapter 6 of the Act concerns ordinary associations. It provides that they do not have legal personality and are exempt from registration. Persons intending to form an ordinary association must adopt a memorandum of association and submit it to a supervisory authority, which can request a court to prohibit the formation of the association. The court can prohibit the formation of the association if its memorandum is not compatible with the law or if its founders do not fulfil the legal requirements.

COMPLAINTS

The applicants complain invoking Articles 10 and 11 of the Convention, that the court ’ s order requiring the publication of an apology constituted an unjustified and disproportionate interference with their freedom of expression and freedom of association. In particular they make the following complaints: ( i ) Polish Media Conference was an ordinary association capable of expressing its views on matters important to the public; (ii) the domestic courts wrongly classified the statement made by the Media Council as facts rather than value judgments; (iii) the interference was not necessary in the democratic society and not proportionate to the legitimate aim pursued.

QUESTION TO THE PARTIES

Has there been a violation of the applicants ’ right to freedom of expression, contrary to Article 10 of the Convention? In particular, did the domestic judicial authorities comply with their positive obligations under Article 10 of the Convention read in the light of Article 11 of the Convention to secure the right of the applicants to freedom of expression?

APPENDIX

No.

Applicant ’ s Name

Birth date

Nationality

Place of residence

1Magdalena BAJER

07/07/1934

Polish

Warsaw

2Helena CIEMIŃSKA

18/06/1941

Polish

Warsaw

3Maciej IŁOWIECKI

28/02/1935

Polish

Warsaw