JOINT CONCURRING OPINION OF JUDGES BRATZA AND HIRVELÄ

We fully concur with the view of the Chamber that Article 10 of the Convention was violated in the present case.

The central problem which gives rise to a violation lies, in our view, in the legislation in question which makes it a criminal offence to publish or disseminate any information provided by a person and recorded in audio or visual form, without the authorisation of the person concerned. As is demonstrated by the facts of the present case, the offence is committed by the mere fact of publication without authorisation, irrespective of the accuracy of the reproduction of the statements made by the individual concerned, irrespective of whether the words spoken are distorted or quoted out of context or conveyed in a misleading manner, irrespective of the identity or position of the individual concerned or the context in which his words were recorded and irrespective of the reasons, if any, given for refusing authorisation. In our view, such a provision cannot be reconciled with the right to freedom of expression guaranteed by Article 10 of the Convention.

Where we have hesitations about the reasoning in the judgment is in relation to paragraph 74 which implicitly, if not expressly, suggests that the outcome might have been different had the prosecution of the applicant been brought by the M.P. himself, rather than by the public prosecutor. It is the fact of the applicant’s prosecution and conviction under the Press Act and not the identity of the prosecutor which is important in the present case and our view that Article 10 was violated would have been exactly the same even if the M.P. had himself brought the prosecution which resulted in the applicant’s conviction.

JOINT CONCURRING OPINION OF JUDGES GARLICKI AND VUČINIĆ

1. We are ready to accept that there has been a violation of Article 10 of the Convention in this case. However, it seems that the judgment could have been drafted in more precise terms. In particular, it is not clear whether the violation results only or mostly from the severity of the sanction or whether the position of the majority should be interpreted as a total rejection of any form of the authorisation requirement.

In our opinion, the finding of a violation should have been based – clearly and exclusively – on three narrower grounds.

First, the authorisation requirement is overbroad in its scope since it applies not only to the text to be published but also to photographs taken in the course of the interview. It should not be forgotten that the applicant’s conviction also referred to the publication of “unauthorised” photographs of the member of parliament who was the subject of the interview.

Second, the authorisation requirement is overbroad since it entails a blanket ban on the publication of any “unauthorised” verbatim quotations. Thus, criminal responsibility arises from the very fact of publication, independently of whether the published quotations were accurate and whether they truly reflected what was actually said by the person interviewed.

Third, while the use of criminal procedure is not fundamentally incompatible with the Court’s understanding of the freedom of the press (see Radio France and Others v. France , no. 53984/00, § 40, ECHR 2004 ‑ II, and Lindon, Otchakovsky-Laurens and July v. France [GC], nos. 21279/02 and 36448/02, § 59, ECHR 2007 ‑ XI), this assessment is more difficult to apply in cases such as the present one, in which the procedure is initiated by a public prosecutor and not upon a private action brought by the person affected (see Raichinov v. Bulgaria , no. 47579/99, § 50, 20 April 2006; Rumyana Ivanova v. Bulgaria , no. 36207/03, § 68, 14 February 2008; and DÅ‚ugoÅ‚Ä™cki v. Poland , no. 23806/03, § 47, 24 February 2009).

2. The Court attached considerable weight to the severity of the sanction in the applicant’s case. It is true that, according to our case-law, an overly severe sanction can tip the balance and lead to a violation of Article 10, even if the conduct of the journalist concerned fell short of the requirements of professional ethics (see, in particular, CumpÇŽnÇŽ and MazÇŽre v. Romania [GC], no. 33348/96, § 116, ECHR 2004 ‑ XI).

In this instance, however, the applicant’s case was conditionally discontinued and he was obliged to pay 1,000 zlotys (equivalent to approximately 250 euros) to a charity. In our opinion, it is difficult to describe this sanction as a severe one.

3. The fact that we have all agreed that there was a violation in the applicant’s case should not be interpreted as a total rejection of any form of the authorisation requirement. It is true that authorisation constitutes a prior restraint on publications and that the Court should apply the most careful scrutiny in assessing any restriction of such nature. But, as was also noted by the majority, Article 10 does not in terms prohibit the imposition of prior restraints and, therefore, a reasonably tailored restriction has a chance of surviving the Court’s scrutiny.

In our opinion there are three considerations that may be used in defence of the authorisation requirement.

First, the requirement applies not to every publication or every interview, but only to texts in which a journalist chooses to include verbatim statements by the interviewed person. Therefore (as was also observed by the Polish Constitutional Court), the authorisation requirement can easily be avoided if a journalist decides to publish his or her own presentation of what was said by the interviewed person.

Second, even verbatim quotations are not always free from the danger of inaccuracy. In the present case, the original transcript ran to forty pages and the published text amounted to only three pages. This is usual practice: a journalist prepares a selection of what has been said and publishes only what he or she considers relevant. But selection may also mean manipulation and it is not difficult to recall situations in which several quotations have been merged into one statement with the content completely distorted. It seems that there is some force in the Constitutional Court’s argument that once an interview is going to be edited, it may be reasonable to allow the interviewed person to have a look at the final version of his – purported – statements.

Finally, we should not ignore the dangers of journalistic abuse. In Poland, as in many other countries, journalists are not always angels. There have been numerous situations in which, particularly in the course of a political debate, a person’s statements have been quoted in a malevolently inaccurate manner. It is, unfortunately, not uncommon for journalists to denigrate political opponents and we must be aware that political journalism sometimes degenerates into an instrument of annihilation rather than of information. The authorisation requirement attempts to address at least one aspect of that process by preventing inaccurate or manipulated – in short, false – quotations.

Thus, the authorisation requirement may serve such legitimate aims as providing the general public with accurate information and contributing to a practice of responsible journalism.

The above-mentioned considerations make us hesitant in accepting that the authorisation requirement, if correctly framed, cannot be regarded as a reasonable limitation of journalistic freedom. We no longer live in a world in which the press can always assume the position of a victim. More and more often, the press abuses its powerful position and, deliberately and malevolently, undermines the good name and integrity of other persons. We have no alternative but to address this new situation.