Communicated on 10 April 2018
FIRST SECTION
Applications nos. 71320/14 and 71360/14
Janusz ANSION against Poland
and Zbigniew WALCZAK against Poland
lodged on 30 October 2014 and 30 October 2014 respectively
STATEMENT OF FACTS
The applicant in the first case (application no. 71320/14), Mr Janusz Ansion, is a Polish national who was born in 1965 (“the first applicant”).
The applicant in the second case (application no. 71360/14), Mr Zbigniew Walczak, is a Polish national who was born in 1963 (“the second applicant”). Both applicants live in Słupca and are represented before the Court by Mr A. Wdowczyk, a lawyer practising in Warsaw.
A. The circumstances of the case
The facts of the cases, as submitted by the applicants, may be summarised as follows.
1. The publication
The first applicant is editor-in-chief and publisher of Kurier Internetowy Słupecki (“Kurier”), a Polish weekly newspaper. The second applicant is a journalist who worked at the material time for Kurier.
On 31 August 2012 Kurier published an article written by the applicants headlined “We disclose another scandal about PSL – the Polish People’s Party” (Ujawniamy kolejną aferę PSL-u), which concerned the fact that a certain well-known politician, E.G. (at that time deputy speaker of the Sejm), had transferred public money to his son’s private company in order to finance his own political campaign. They further stated that in reprisal E.G.’s bodyguards had forbidden the journalist working for Kurier from covering the son’s wedding. The article was also published on the website .
In particular, the article included the following statements:
“... at the beginning of the year M.G., the son of the Deputy Speaker of the Sejm, started a business. Six months later tens of thousands of zlotys from his father’s party entered the business account ... It looks like somebody is supporting a fledgling company, whose owner is M.G., the son of Sejm Deputy Speaker E.G. Journalists from Kurier Słupecki reveal the secrets of the family business of this PSL ‘baron’.” (Na początku roku M.G., syn wicemarszałka Sejmu, uruchamia firmę. Pół roku później na firmowe konto wpływają dziesiątki tysięcy złotych z partii jego ojca (...). Wygląda na to, ze ktoś wspiera raczkującą firmę, której szefem jest M.G., syn wicemarszałka Sejmu E.G. Dziennikarze „Kuriera Słupeckiego” odsłaniają kulisy rodzinnych interesów „barona” PSL.)
“Overall, E.G., the head of the PSL campaign team and a parliamentary candidate at the same time, added in just two months the considerable sum of 121,533 zlotys in funds to M.G.’s bank account. This was money obtained from the government budget, so our money migrated to the family ... Were other sums also handed over by PSL?” (W sumie E.G., szef sztabu wyborczego PSL i jednocześnie kandydat do parlamentu, tylko przez dwa miesiące zasila konto M.G. niebagatelną kwotą 121 tys. 533 zł. 99 gr. Pieniądze pozyskane z budżetu państwa, czyli nasze pieniądze wędrują do rodziny. (...) Czy pozostale kwoty również zostały przekazane przez PSL?”)
“E.G., W.P.’s right-hand man, on the occasion of the last election campaign, kindly and generously provided financial support for his son’s company ... Will ordinary party members still be so generous when they hear of another scandal within the PSL elite? At a time of a nationwide collection for the repayment of multimillion debts, the majority of the party’s members may wonder how honest it is to dip into the pockets of people at the party’s lowest levels.” (E.G., prawa ręka W.P., przy okazji minionej kampanii wyborczej, tak łaskawie i szczodrze wspierał finansowo firmę swego syna (...). Czy szeregowi członkowie partii nadal będą tak hojni, kiedy dowiedzą się o kolejnej aferze wśród elit PSL-u? W dobie ogólnokrajowej zbiórki na spłatę wielomilionowego długu, większość ludowców może się zastanawiać, czy uczciwe jest sięganie do kieszeni osób na najniższych szczeblach partii?)
“... the joy from M.’s marriage alternates with articles in Kurier Słupecki, Głos Wielkopolski and Gazeta Wyborcza, bitterly denouncing local pacts. By way of reprisal, the deputy speaker’s bodyguards have unlawfully forbidden a journalist working for Kurier from covering his son’s wedding.” (Radość z zawarcia związku małżeńskiego M., przeplata się z publikacjami w „Kurierze Słupeckim”, „Głosie Wielkopolskim” i “Gazecie Wyborczej” gorzko piętnującymi lokalne układy. W odwecie ochroniarze wicemarszałka bezprawnie zabronili relacjonować ślub jego syna dziennikarce Kuriera”.)
2. Criminal proceedings
On 5 September 2012 E.G. lodged a private bill of indictment against the applicants with the Konin District Court. He complained that the applicants had published untrue information which had lowered the public’s opinion of him and had damaged his reputation, which was necessary to undertake his job as a politician. He relied on Article 212 of the Criminal Code, penalising the offence of defamation (zniesławienie).
On 18 June 2013 the Konin District Court delivered its judgment. It convicted the applicants of defamation committed through the media and sentenced them to a fine of 2,000 Polish zlotys (PLN) (approximately 500 euros (EUR)) each but discontinued the proceedings for a probationary period of one year. The court also ordered the applicants to pay PLN 1,000 (EUR 250) each to a charity and PLN 300 (EUR 75) in costs.
The court held that the applicants had published untrue information relating to E.G. which had damaged his reputation as a public figure.
On 27 November 2013 the Konin Regional Court amended the contested judgment and acquitted the applicants. It held in particular, that the District Court had not analysed the statements correctly but had only examined the specific phrases without referring to the context of the article as a whole. However, the Regional Court considered that in view of the whole article, the provisions relating to political parties and the financial reports of the company Cessans sp.z.o.o., the applicants had been authorised to make the statements in question.
In conclusion it held that the statements made by the applicants in the article were true and related to the conduct of a public figure. For that reasons, the applicants had to be acquitted. On a passing note, the court observed also that a true statement meant that its substance was true and not it’s every single detail.
3. Civil proceedings
On an unspecified date E.G. (“the plaintiff”) lodged a civil claim for the protection of his personal rights against both applicants. He sought an order requiring the defendants to publish an apology in Kurier Internetowy Słupecki, Głos Słupcy, Gazeta Słupecka, Gazeta Wyborcza and Głos Wielkopolski for publishing an article violating his personal rights. He also required an apology, which he wanted published on the website. He further sought reimbursement of his legal costs and payment by the applicants of PLN 30,000 (EUR 7,500) to a charity.
On 9 December 2013 the Poznań Regional Court found for the plaintiff. The court ordered the applicants to publish the apologies sought in the statement of claim and to pay PLN 30,000 to a charity. The court considered that the article in question had breached the plaintiff’s personal rights and undermined his reputation.
The court established that on 4 February 2011 the PSL General Executive Committee (Naczelny Komitet Wyborczy PSL) had adopted a “framework schedule for the preparation of the 2011 parliamentary election campaign” and that on 18 March 2011 E.G. had been elected as the head of the national campaign team (szef Krajowego Sztabu Wyborczego). On the same date (18 March 2011) the rules on financing the campaign had been adopted. A certain M.P. had become the head of E.G.’s campaign team. One of the companies which provided services for E.G.’s parliamentary election campaign was the publishing and advertising company Cessans sp. z.o.o., where M.G., E.G.’s son, was director. Invoices totaling PLN 121,533 (EUR 30,383) had been issued by the company. One assignment had also been carried out by the first applicant’s company, Graffi Studio.
On 6 February 2012 the parliamentary election campaign’s financial report had been adopted and the applicants had consulted it; the second applicant had also consulted the National Court Register and found that Cessans sp. z.o.o.’s assets had increased during the campaign. The applicants had contacted a journalist working for Gazeta Wyborcza, P.B., who had met K.L. from the National Electoral Commission in order to establish the ways of financing a campaign. P.B. had also met the director of the anti-corruption programme at the Stefan Batory Foundation, who was of the view that the procedure described had supported E.G.’s family to an excessive extent. The second applicant had tried to contact E.G.’s constituency office, without success. He had also tried to contact him on a private number. On 20 August 2012 the first applicant had asked the PSL General Executive Committee to provide him with information about the number and value of the tasks assigned to Cessans sp. z.o.o. Without waiting for an answer (which was sent on 5 September 2012), the applicants had published the article in question.
The court considered that the content of the article had presented a very negative picture of E.G. It concluded that the applicants had disseminated untruthful information about E.G. in order to denigrate him and to lower the public esteem that was necessary for his functions as a politician. Moreover, the court found that E.G.’s son had decided that his wedding would not be covered by the media and that no journalists, including those from Kurier, had been allowed to be present at the ceremony. Consequently, that decision could not be treated as a reprisal, as maintained by the applicants.
On 27 May 2014 the Łόdź Court of Appeal amended the first‑instance court’s judgment by deleting the part of the order requiring the defendants to publish an apology in Gazeta Wyborcza and Głos Wielkopolski and halved the amount to be paid to charity. The court agreed with the court of first instance’s findings and found that the applicants had disseminated untrue information about E.G.
The court accepted the applicants’ argument that they had been motivated by a desire to protect the general interest and by their obligation to inform the public of issues of such interest. It confirmed that they had exercised their freedom of expression protected by Article 10 of the Convention. However, the court held that the applicants had not observed due diligence in gathering the relevant information, as required by section 12(1) of the Press Act. The court found that the applicants had not waited for the PSL General Executive Committee’s answer, although that body had been better placed to answer their questions than the National Electoral Commission. Moreover, they had not familiarised themselves with the legal provisions on the financial rules for electoral campaigns. Furthermore, they had not proved that they had tried to reach E.G. as they could have sent him the questions by email, fax or post. The required level of diligence was that the person concerned had to have an opportunity to express his or her point of view. The court further noted that society did indeed have a right to information but any such information had to be truthful rather than false. The court concluded that the article in question had contained untruthful information.
B. Relevant domestic law and practice
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 seeking redress for an infringement of a personal right. It states that a person facing a possible infringement of that kind may demand that the prospective perpetrator refrain from the wrongful activity in question, 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 or her. If an infringement of a personal right causes a financial loss, the person concerned can seek damages.
COMPLAINT
The applicants complain under Article 10 of the Convention that the domestic courts interfered with their right to freedom of expression.
QUESTION
Has there been an interference with the applicants’ freedom of expression, within the meaning of Article 10 § 1 of the Convention? If so, was that interference necessary in terms of Article 10 § 2?
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