Communicated on 1 September 2014

FOURTH SECTION

Application no. 26115/10 Jacek KURSKI against Poland lodged on 5 May 2010

STATEMENT OF FACTS

The applicant, Mr Jacek Kurski , is a P olish national, who was born in 1966 and lives in Gdansk. He is represented before the Court by Mr R. JanoÅ› , a lawyer practising in Warszawa.

A. The circumstances of the case

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

At the relevant time the applicant was a member of the Polish parliament.

On 8 May 2006 the applicant, together with a few other politicians, experts and journalists participated in a live television programme Warto rozmawia ć shown on TVP2.

During the programme , the applicant took out a copy of Gazeta Wyborcza , a Polish daily newspaper, and pointing to particular pages said:

“I would like to show what is the nature of the relationship between this media agreement (“ uklad ” ) ... and the attacks on “Law and Justice” . I will show you Gazeta Wyborcza ; which for the first seven pages, for example today, is a crazy attack on “Law and Justice”; out of modesty I would not mention that a horrible piece about me, full of lies is on the first page. Second page; crazy attack on Kaczy ń ski and the Polish Families League, here: “Students fear flogging”, etc etc , “ Radio Maryja miracles”. This is just obsessive propaganda. But let ’ s go further to page thirty-five. And what do we see? We see an advertisement titled “We have built one of the world ’ s biggest stock markets with the participation of Polish shareholders. We are proud of it.” This is an advertisement for the company J & S SA (...)

So the paradox is that usually in newspapers they advertise washing powders, cosmetics, beers, or cars, that is: consumer goods widely available ( powszechnego nabycia ). This [company] is a monopolist. It does not need any advertisement. This company imports to Poland most of the petroleum oil and drives billions of euro away from Poland to another company which is registered somewhere in Cyprus. It is not about any advertisement. It is [about] financing through an agreement, which has been threatened by “Law and Justice ” , a mass propaganda against “Law and Justice”, so that such dubious deals [ geszefty ]..... (...)

The point is that “Law and Justice” touched extremely serious connections, which have been draining ...

One sentence ... but the jokes are over and this agreement understood that there will be no earlier elections, there will be no minority government; this is a chance for an institutional construction .....”

On 16 May 2006, Agora S.A., the publisher of Gazeta Wyborcza lodged a civil claim against the applicant for the protection of its personal rights. He claimed that the applicant had harmed its good name and credibility by his statements made during the television programme on 8 May 2006 .

On 12 June 2007 the Warsaw Regional Court granted the claim and ordered the applicant to publish an apology for the statements he had made. It further ordered the applicant to pay 10,000 Polish zlotys (PLN) to a charity and PLN 2,410 in court fees.

The court considered that the applicant had breached the plaintiff ’ s personal rights, in particular its good name, credibility and reputation. It transpired from the applicant ’ s statement that he had wished to show the audience that the plaintiff and Gazeta Wyborcza had had some kind of media/business agreement whereby under the pretext of publishing advertisements, articles against “Law and Justice” in Gazeta Wyborcza had been financed. The applicant ’ s statement contained both facts and the applicant ’ s conclusions drawn from those facts. The court further observed that the accusation that a newspaper published articles ordered by a sponsor was clearly offensive for the publisher. Likewise, it was offensive for the publisher to be associated with a company which conducted morally doubtful activity. The defendant had not submitted any evidence in support of his allegations.

The court further stressed that the company J & S SA, at the relevant time, had placed advertisements in several other newspapers and magazines. However, the applicant had not alleged that those newspapers or magazines had been involved in the so-called “agreement”.

On 25 June 2008 the Warsaw Court of Appeal upheld the first instance judgment and ordered the applicant to pay 270 PLN in court fees for the proceedings before the second instance.

The Court of Appeal considered that the first-instance judgment did not relate to the part of the applicant ’ s statement which concerned publications about himself and “Law and Justice”, even though he had called them “crazy attacks”, since the fact that Gazeta Wyborcza was critical of “Law and Justice” was widely known and did not need to be proved. However, the applicant ’ s allegations that the company J&S SA conducted unclear or even suspicious deals under the cover of placing advertisements in Gazeta Wyborcza and in fact financed them only to destroy “Law and Justice”, which had been fighting against the “agreement” between the company in question and Gazeta Wyborcza , were a statement of fact. Nevertheless, the applicant had not proved that the information about connections between the plaintiff and the J&S SA company had been correct.

The applicant ’ s cassation appeal was dismissed by the Supreme Court on 5 November 2009. The court referred to Article 10 of the Convention and stressed that freedom of expression was not absolute. It further reiterated referring to the case of Feldek v. Slovakia (see Feldek v. Slovakia , no. 29032/95, ECHR 2001 ‑ VIII), that w here a statement amounted to a value judgment, the proportionality of the interference may depend on whether there existed a sufficient factual basis for the impugned statement, since even a value judgment without any factual basis to support it may be excessive. In the present case the defendant had not even attempted to prove the accuracy of his statements about the alleged connections, of which he had accused the plaintiff.

On 26 February 2010 the Warsaw District Court allowed Agora S.A. to publish an apology in Gazeta Wyborcza , in the applicant ’ s name, and ordered the applicant to cover the costs of the publication in the amount of 34,897.36 PLN.

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 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 interference complained of necessary in terms of Article 10 § 2?