FOURTH SECTION

Application no. 59545/10 BŁAJA NEWS SP. Z O.O. against Poland lodged on 20 July 2010

STATEMENT OF FACTS

The applicant, Błaja News Sp. z o.o ., is a limited liability company with its seat in Łódź . It is represented before the Court by Mr R. Kotliński , its director, and by M. Górski , a lawyer practising in Łódź .

A. The circumstances of the case

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

The applicant company publishes a weekly entitled “ Fakty i Mity ”. In 2007 the weekly published an article written by journalist M.Sz . about the local prosecutor, alleging that she, together with her husband, a businessman, had been involved in drug trafficking. The article alleged that she had been present as a kind of protection at a meeting held on an unspecified date. At that meeting her husband had bought amphetamine from certain persons against whom criminal proceedings were pending at the time of the publication. It was further alleged that the prosecuting authorities knew about her involvement in the alleged drug trafficking, but that they had chosen not to prosecute.

The prosecutor brought a civil case against the applicant company and against R.K., its president and editor-in-chief of the weekly. She claimed protection of personal rights within the meaning of Articles 23 and 24 of the Civil Code.

By a judgment of 15 September 2008 the Łódź Regional Court allowed the claim and ordered the applicant company jointly with the weekly ’ s editor-in-chief, to publish an apology in their newspaper.

They were further ordered to pay PLN 30,000 to the plaintiff in compensation for breach of her personal rights.

The court found that the plaintiff ’ s marriage had had difficulties since approximately 1995. Her husband was a businessman. He had considerable financial problems since at least 1995. The parties divorced in 2002. The impugned article suggested, without giving the prosecutor ’ s surname, but in a manner making her identity obvious to any reader in Łódź legal circles, that on an unspecified date she had accompanied her husband to a meeting held somewhere in a street in Łódź . A certain S.W., remanded in custody at the time of publication, had told Ms O. H.B. who worked for the weekly as a researcher of that transaction in which he had allegedly participated with P.T., a suspect in another set in criminal proceedings.

The court found that the author of the article had failed to make reasonable efforts to contact the plaintiff before the publication. The efforts on the part of the researcher and the journalist to get in touch with her had been completely inadequate, the more so since they were seasoned journalists. Other journalists had managed to contact her at her office. Journalist M. Sz . had failed to take into consideration that S.W. was remanded in custody and that he had therefore had an interest in blackening the prosecutor ’ s name as she was involved in certain cases against him. Likewise, the journalist and the editor had failed to take any steps with a view to contacting P.T. in order to obtain from him information corroborating S.W. ’ s allegations. In criminal proceedings against S.W. and P.T. in which they had been convicted of drug trafficking they had told the court that they had sold 700 g of amphetamine to the prosecutor ’ s husband in the presence of an unknown woman who had allegedly been waiting in the car. However, the identity of that woman had never been established.

The court noted that the prosecutor ’ s husband against whom criminal proceedings were pending at that time had gone into hiding and it had been impossible to find him and to make him testify.

The court held that the impugned article breached the plaintiff ’ s personal rights, blackened her reputation and exposed her to difficulties and disrepute in her professional and social life. It lacked objectivity and was one-sided. The tone of the article was sensationalist. It presented mere conjecture as facts.

The court observed, having regard to the financial report of the applicant company for 2007, that it was in a good financial situation and that therefore PLN 30,000 in damages was an appropriate award in the circumstances of the case.

The court questioned journalist M.Sz ., P.T., researcher Ms O. H.B., the plaintiff, S.W., and three other witnesses as to the impact that the article had on the plaintiff ’ s professional environment.

The applicant company appealed, referring, inter alia , to Article 10 of the Convention.

By a judgment of 29 December 2008 the Łódź Court of Appeal dismissed the appeal. It shared the conclusions of the lower court as to the applicant ’ s failure to act with the diligence which could and should be expected from journalists. It stressed that they had failed to seek information that could counter their pre-conceived version of events or dispel doubts as to the facts. It shared the lower court ’ s conclusion that the transaction itself had indeed taken place, but that the plaintiff ’ s alleged involvement in it had been presented in a tendentious and unreliable manner. The court briefly referred to Article 10 of the Convention and stated that the interference was necessary as the applicant had breached the plaintiff ’ s rights by their insinuations which were not based to any reasonable degree on the available evidence.

On 27 January 2010 the Supreme Court dismissed the applicant company ’ s cassation appeal.

B. Relevant domestic law

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

“The personal rights of an individual, such as, in particular, 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 by the 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. According to that provision, a person facing the danger 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 claim just satisfaction from him/her. If an infring ement of a personal right causes financial loss, the person concerned may seek damages.

COMPLAINT

The applicant complains, relying on Article 10 of the Convention, that the judgment breached its rights 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?