Communicated on 4 June 2019

FIRST SECTION

Application no. 77169/14 ÅšWIT SP. Z O.O. against Poland lodged on 5 December 2014

STATEMENT OF FACTS

The applicant, Świt sp. z o.o ., is a Polish company, based in Tarnów . It was represented before the Court by Mr B. Filar , a lawyer practising in Tarnów .

A. The circumstances of the case

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

1. The background of the case

The applicant company is a publisher of the regional magazine entitled TEMI – Galicyjski Tygodnik Informacyjny (“the magazine”).

On 2 January 2013 the applicant company published an article entitled “My priest father” (“ M ó j tata ksi ą dz ”) written by a journalist, Z. The article concerned the story of L., a married woman, who, the article claimed, had had a child with a Catholic priest.

The article did not provide the full names of the priest or the mother but included their first names, the first name of the child and of L. ’ s husband, the full name of L. ’ s mother-in-law and sister-in-law, details of the schools where the priest taught religion and the name of the parish to which he was transferred.

The article included a suggestion that the priest had been transferred to another parish because of the affair. It also included exact excerpts from an expert psychologist ’ s opinion which had been prepared during proceedings brought to limit L. ’ s husband ’ s parental rights ( ograniczenie praw rodzicielskich ) . In particular, L. had told the expert that at that time she had been in a year ‑ long relationship with a certain K., aged 27, who taught religion at the local school. She had stated that they had expected a child together and that they had planned to rent a house together; he had also taken care of her three children and had a good relationship with them.

The journalist also relied on excerpts from pleadings lodged by L. in a case seeking to refute paternity ( zaprzeczenie ojcostwa ). In those pleadings she had admitted that her husband A. was not the biological father of the child but that another man was the father – a certain K. In addition, the journalist quoted statements made by the priest ’ s superiors and L. ’ s husband ’ s family, as well as negative opinions expressed about the priest ’ s and L. ’ s behaviour by members of the local community. She also quoted an unnamed cousin of L. who had revealed that the priest had promised L. that he would resign from the priesthood for her and marry her but that he had not kept his promise and L. had felt betrayed by him. The article ended with K. ’ s statement, made during a telephone call, that he had known L. as she was a parishioner in S., but noted that he had hung up when the journalist asked him why L. had named him as the father of her child and whether he would undergo a DNA test.

2. The civil proceedings

On 8 March 2013 K. lodged a civil claim with the Tarnów Regional Court ( Sąd Okręgowy ) for the protection of his personal rights against the journalist Z., the editor-in-chief T., the magazine TEMI – Galicyjski Tygodnik Informacyjny and the applicant company. The claimant sought an order requiring the defendants to publish an apology. He also asked that they pay 1,000 zlotys to the Polish Red Cross.

On 5 July 2013 the Tarn ó w Regional Court allowed the claim and ordered the defendants to publish an apology within the first pages of the magazine expressing deep regret and apologising to the priest K. for a breach of his personal rights by publishing information concerning the private sphere of his life. The court dismissed the remainder of the claim.

The court found that the claimant had met L. in 2011, while he had been working in a parish in S. The facts were established primarily by reference to the court files of L ’ s application to refute her husband ’ s paternity, in which L. had stated that K. was the father of her newborn child. The court also relied on an expert ’ s opinion issued during the proceedings to limit L. ’ s husband ’ s parental rights. The experts noted that L. had declared that she had been moving to a separate house that she had been to rent with her partner, who had taught religion at the local school and with whom she had expected a child.

The court established that the journalist Z., while gathering material for the article, had contacted the claimant ’ s superiors. In addition, she had also unsuccessfully tried to contact K. on one occasion for his comments but he had not picked up the telephone. Z. had revealed that she had received the expert ’ s opinion quoted in the article from L. ’ s husband and had been inspired by his family to write the contested article.

The information revealed in the article had made it possible to identify the claimant. Both the article and the method of gathering the information for the article used by the journalist had been widely commented on by K. ’ s superiors, as well as in the communities where he was serving as a priest.

The court held that the journalist had a good basis to claim that K. was the child ’ s father, as the evidence gathered during the course of the proceedings had not proved that the published information had been untrue. In particular, the court did not find the results of the DNA test submitted by the claimant, seemingly showing that he was not the biological father of L. ’ s son, to be reliable, as the court contested the method by which the biological material had been obtained. Despite that, the court considered that the way in which the claimant had been presented in the article (as a priest who had been involved in an affair with a married woman, with whom he had a child) had infringed his reputation.

The court considered that the claimant was a public figure whose private sphere of life should be separated from the public one and protected. The fact that K. was a priest did not mean that details from his private life could be revealed to the public. This was particularly the case as the information disclosed in the article could also have been disseminated among the part of society that did not identify with Catholic values and beliefs. Accordingly, the court found that the article had been a flagrant violation of K. ’ s personal rights.

On 3 December 2013 the Cracow Court of Appeal ( SÄ…d Apelacyjny ) dismissed an appeal by T., Z. and the applicant company.

The court agreed with the findings of the Tarn ó w Regional Court. It held that the published information had been true and therefore it had not tarnished the claimant ’ s dignity but rather it had interfered with his right to respect for his private life. It was justifiable for information to be published that related directly to a person ’ s public activity. However, in the present case the information had not been public. It had concerned the claimant ’ s private sphere and his relationship with L. Consequently, it should only have been published if it had been directly linked with the claimant ’ s public activities. In the court ’ s view, the fact that K. was a priest did not mean that it had been appropriate to disseminate information about a breach of the Decalogue by such a person, even if those laws were held as standard values for the majority of society . The desirability of disclosing facts for the local community did not mean that all information about the private life of a priest could be disclosed, especially if that person were unambiguously identifiable.

On 23 July 2014 the Supreme Court refused to entertain a cassation appeal by T., Z. and the applicant company.

B. Relevant domestic law

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.

COMPLAINT

The applicant company complained, invoking Articles 10 and 14 of the Convention, that the court ’ s order requiring the publication of an apology constituted an unjustified and disproportionate interference with its freedom of expression.

QUESTIONS TO THE PARTIES

1. Has there been an interference with the applicant company ’ s freedom of expression, within the meaning of Article 10 § 1 of the Convention?

If so, was that interference necessary in terms of Article 10 § 2?

2. The parties are specifically asked to comment on whether the journalist in the present case had acted with the necessary degree of “good faith” in the exercise of her profession (see, amongst many others, Bédat v. Switzerland [GC], no. 56925/08, § 58, 29 March 2016).