Communicated on 19 January 2015

FOURTH SECTION

Application no. 18533/13 Danuta WĄSOWICZ-HOŁOTA and Agnieszka GROŃ against Poland lodged on 5 March 2013

STATEMENT OF FACTS

The applicants, Ms Danuta Wąsowicz-Hołota and Ms Agnieszka Groń , are Polish nationals, who were born in 1958 and 1975 respectively, and live in Nysa and Niwnica . The first applicant is an editor-in-chief of the weekly newspaper Nowiny Nyskie and the second applicant is a journalist working for the newspaper. They are represented before the Court by Mr J. Sanocki , the director of the publishing house.

A. The circumstances of the case

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

On 2 April 2009 the Nowiny Nyskie published two articles written by the second applicant which concerned Mr W.J., a well-known local poet who had also been a candidate in local elections. The article on page nine of the newspaper was a summary of an article from the weekly Tylko Polska written by L.B., a journalist, concerning the alleged collaboration of W.J. with the Polish communist-era secret police ( SÅ‚użba BezpieczeÅ„stwa ‑ “SB”). It included extensive quotation from the article by L.B. and was accompanied by a picture of the relevant page from Tylko Polska and by a transcribed note from 1983 made by a SB agent reporting on his meeting with W.J. The second article, on page 18, consisted of an interview with W.J. responding to the allegations made in the previous article. The second article was complemented by two documents, namely a certificate from the Polish Institute of National Remembrance ( Instytut PamiÄ™ci Narodowej , “ IPN”) issued on 5 June 2006 and the operative part of the judgment of the Warsaw District Court of 9 July 2008, which concerned pending criminal proceedings brought by W.J. against L.B. in respect of the same allegation made by L.B. in 2005. The two documents supported W.J. ’ s version of the story and were, along with a third document, part of his consent for authorising the publication of the interview. The third document was a letter from 21 March 2009 written by W.J. to the editors of Tylko Polska requesting that a correction be made to the article, since due to its publication there had been an increased media interest surrounding W.J.

The newspaper did not publish the third document. Further, the front page of the newspaper, in the top right corner, contained a small picture of W.J. next to a heading which stated:

“A Nyski poet and hotel owner – unmasked by [L.B.] as a SB collaborator”

After the publication, media interest in the issue increased again and W.J. decided not to stand for the upcoming local elections.

On 2 June 2009 W.J. instituted civil proceedings before the Opole Regional Court claiming that the publication violated his personal rights. He sought the court to order the applicants to publish an apology, a correction to the impugned article and a sum of 5,000 Polish zlotys (PLN) to be paid to a charity.

On 28 January 2011 the Opole Regional Court dismissed W.J. ’ s claim. The court established that Mr W.J. was a very well-known person in Nysa , member of the local poetry association and, in the past, a candidate in local elections. The court noted that Mr W.J. had been in conflict with Mr L.B., who already in 2005 made a similar allegation against him. In 2008 the Warsaw District Court convicted L.B. of slander; however this judgment was quashed upon appeal. In 2006 the IPN issued a certificate confirming that W.J. had not been on the list of the collaborators with the communist regime.

Turning to the articles in question, the court noted that W.J. authorised publishing the second one which had been an interview with him accompanied by two out of three documents provided by him. In the interview he had admitted to contacts with security services ’ agents which had not been avoidable but had not amounted to intentional and secret collaboration. The first article was a summary of an article from a different publication and the court found that the applicants clearly made it known that it was a summary by citing the source. The court examined the claimant ’ s argument that the heading on the first page conveyed a suggestion that he had been a collaborator. However, it dismissed it considering that it had been taken from the first article based on quotations from Tylko Polska and should be examined as part of a balanced publication providing arguments by both sides of the conflict. The court examined the case from the standpoint of principles embodied in Article 10 of the Convention and concluded that the applicants showed due diligence in publishing the articles. The court underlined the crucial role of the press in the society and considered that the journalists acted in the public interest and participated in a debate on an important issue.

The claimant lodged an appeal against the judgment.

On 23 August 2011 the Wrocław Court of Appeal granted the appeal and amended the impugned judgment by granting W.J. ’ s claim. It ordered the applicants, within two months of the judgment of the court becoming final, to publish the following text in the top right side of the first page of Nowiny Nyskie :

“The editors apologise and rectify: [W. J.] was not a collaborator with the communist-era secret police.”

The applicants were ordered to pay to 3,000 Polish zlotys (PLN) to a charity and, in total, PLN 3,620 as a reimbursement of the costs of the first-instance and appeal proceedings to W.J. The court agreed with the lower court ’ s assessment of facts and considered that the articles on pages nine and eighteen of the newspaper had not breached W.J. ’ s personal rights. However, the court disagreed with the conclusion of the Regional Court as regards the heading on the front page of the newspaper accompanied by a photo of W.J. The court considered that the heading insinuated that W.J. was in fact a collaborator with SB. Thus, readers who had merely read the front cover of the newspaper would be lead to think that W.J. was clearly a collaborator with SB.

On the same day the applicants lodged a cassation appeal to the Supreme Court.

On 25 October 2012 the Supreme Court refused to entertain the cassation appeal. The decision was notified to the applicants on 14 December 2012.

B. Relevant domestic law and practice

1. Relevant constitutional provisions

Article 14 of the Constitution provides as follows:

“The Republic of Poland shall ensure freedom of the press and other means of social communication.”

Article 31 § 3 of the Constitution, which lays down a general prohibition on disproportionate limitations on constitutional rights and freedoms (the principle of proportionality), provides:

“Any limitation upon the exercise of constitutional freedoms and rights may be imposed only by statute, and only when necessary in a democratic State for the protection of its security or public order, or to protect the natural environment, health or public morals, or the freedoms and rights of other persons. Such limitations shall not violate the essence of freedoms and rights.”

Article 54 § 1 of the Constitution guarantees freedom of expression. It states, in so far as relevant:

“Everyone shall be guaranteed freedom to express opinions and to acquire and to disseminate information.”

2. The Civil Code

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

“The personal rights of an individual, such as, in particular, health, liberty, honour , 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.”

Article 24 § 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.”

COMPLAINT

The applicants complain about a breach of their right to freedom of expression secured by Article 10 of the Convention. They submit that W.J. was a local politician and that the press was obliged to inform the public opinion about controversies relating to his conduct in the past. They argued that the articles had been written with due diligence and based on reliable evidence.

QUESTION TO THE PARTIES

Has there been a violation of the applicant ’ s right to freedom of expression contrary to Article 10 of the Convention?