Communicated on 29 September 2014

FOURTH SECTION

Application no. 65937/11 Andrzej ZYBERTOWICZ against Poland lodged on 7 October 2011

STATEMENT OF FACTS

The applicant, Mr Andrzej Zybertowicz , is a Polish national, who was born in 1954 and lives in Toruń .

A. The circumstances of the case

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

The applicant is a Polish publicist and an adviser to the former president L. Kaczy Å„ ski .

On 11 January 2008 Rzeczpospolita , one of the biggest daily newspapers, published an article titled “ Zybertowicz , so far 2:0 to the Third Polish Republic” (“ Zybertowicz : na razie 2:0 dla III RP ”). The article contained a list of civil lawsuits against the applicant instituted by A.M, an editor-in chief of another daily newspaper “ Gazeta Wyborcza ”, a certain M.S and Z.S.. The article also included the applicant ’ s comment on the lawsuits in question:

“In a way it is quite interesting, who had so far lodged a [civil] claim against me: two agents and one their fierce defender” (“ Swoją drogą to ciekawe , kto mnie dotychczas pozwał do sądu : dwóch agentów i jeden ich zaciekły obrońca ”)

On 19 March 2008, A.M, brought a civil action in the Warsaw Regional Court ( Sąd Okręgowy ) requesting legal protection of his personal rights. He requested that the applicant be ordered to publish an apology and to pay damages of 20,000 Polish zlotys (PLN) to a charity.

On 1 April 2008 the Warsaw Regional Court transferred the case to the Torun Regional Court.

On 20 August 2008 the Warsaw Court of Appeal quashed this decision.

On 9 June 2009 the Warsaw Regional Court gave judgment and allowed the plaintiff ’ s claim. It ordered the applicant to publish an apology on the first, second or third page of Rzeczpospolita . It further determined the exact length of the apology. The court also ordered the applicant to pay PLN 1,000 to a charity and PLN 1,025 in court fees.

During the proceedings the court questioned the applicant, the plaintiff and obtained two expert reports on language analysis.

In its judgment the Warsaw Regional Court established that the applicant when formulating the statement in question referred in particular to a number of publications, public statements made by A.M. himself and the Warsaw Court of Appeal ’ s judgment confirming that Z.S. had indeed been collaborating with the Security Service.

The Regional Court held that anyone, even not following the news carefully, was aware that M.S. and Z.S. had been accused of collaborating with the Security Service. In particular readers of Rzeczpospolita should have been aware of these facts as the newspaper published numerous articles on the issue.

The Warsaw Regional Court continued that from the applicant ’ s statement and the whole article it did not appear that A.M . had been an “agent”. While the applicant in his statement had not specified who in his opinion had been “an agent” and who “their fierce defender”, from the nature of the publication and taking into account the readers ’ general knowledge it was clear that the plaintiff was considered to be “a fierce defender of two agents”. At the same time, the court accepted that had the applicant used a more general formulation and referred only to A.M. ’ s attitude towards the lustration law such words could have fitted into the limits of acceptable criticism.

The court further considered, relying on language experts ’ opinions, that the statement in question was a statement of fact and not an expression of the applicant ’ s opinion.

In conclusion the court held that A.M. ’ s personal rights had been breached, however, only partially. For those reasons the court considered that the plaintiff ’ s claim had been exaggerated and lowered the sum to be paid to the charity.

Both parties appealed.

On 11 March 2010 the Warsaw Court of Appeal ( SÄ…d Apelacyjny ) modified the first instance judgment and ordered the applicant to pay PLN 10,000 to the charity and PLN 2,845 in court fees.

The court agreed with the reasoning presented by the Regional Court. It held that while a statement “fierce defender of two agents” had breached A.M. ’ s personal rights , it was not defamatory. The court further agreed with the Regional Court that the applicant had named A.M . as a defender of two particular persons. However, he had failed to prove that his statement had been true. Consequently, the court considered that the phrase used by the applicant had breached the plaintiff ’ s personal rights, in particular his good name and conflicted with the values declared by him.

The applicant filed a cassation appeal. In particular, he referred to Article 10 of the Convention.

On 24 March 2011 the Supreme Court ( Sąd Najwyższy ) refused to entertain the applicant ’ s cassation appeal

On 10 June 2011 the Warsaw District Court allowed A.M. to publish an apology in Rzeczpospolita , in the applicant ’ s name, and ordered the applicant to cover the costs of the publication in the amount of 23, 124 PLN.

B. Relevant domestic law and practice

1. The Polish Constitution

Article 14 of the Constitution provides:

“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:

“The freedom to express opinions, to acquire and to disseminate information shall be ensured to everyone.”

2. Personal rights and their protection under the Civil Code

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 ( część ), 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 relevant 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.

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 a suitable sum as pecuniary compensation for non-pecuniary damage ( krzywda ) suffered by anyone whose personal rights have been infringed. Alternatively, without prejudice to the right to seek any other relief that may be necessary to remove the consequences of the infringement, the person concerned may ask the court to award a suitable sum for the benefit of a specific social interest. ...”

COMPLAINT

The applicant complains under Article 10 of the Convention of an unjustified interference with his right to freedom of expression.

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? In particular, was the alleged interference in the present case n ecessary in terms of Article 10 § 2? [A1]

[A1] ITMARKQuestionStart

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