FOURTH SECTION
CASE OF ZYBERTOWICZ v. POLAND
(Application no. 59138/10)
JUDGMENT
STRASBOURG
17 January 2017
FINAL
17/04/2017
This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision.
In the case of Zybertowicz v. Poland,
The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of:
András Sajó, President,
Vincent A. De Gaetano,
Paulo Pinto de Albuquerque,
Krzysztof Wojtyczek,
Egidijus Kūris,
Iulia Motoc,
Gabriele Kucsko-Stadlmayer, judges,
and Marialena Tsirli, Section Registrar,
Having deliberated in private on 6 December 2016,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1. The case originated in an application (no. 59138/10) against the Republic of Poland lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Polish national, Mr Andrzej Zybertowicz (“the applicant”), on 25 August 2010.
2. The applicant was represented by Mr G. Górski, a lawyer practising in Toruń. The Polish Government (“the Government”) were represented by their Agent, Mrs J. Chrzanowska from the Ministry of Foreign Affairs.
3. The applicant alleged that his right to freedom of expression had been breached, in violation of Article 10 of the Convention.
4. On 1 September 2014 this complaint was communicated to the Government and the remainder of the application was declared inadmissible pursuant to Rule 54 § 3 of the Rules of Court.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
5. The applicant was born in 1954 and lives in Toruń.
6. He is a publicist and a professor of sociology.
A. The statement in issue
7. On 13 March 2007 the applicant was interviewed on the telephone by M.Z., a journalist from Rzeczpospolita, a national daily newspaper, on the subject of lustration of journalists which at that time was widely commented on in the media. The transcript of that interview was sent to the applicant by email. The applicant sent the text back with some minor corrections.
8. On 14 March 2007 the newspaper published the applicant’s opinion. It was titled “Journalists under autohypnosis” (“Żurnalisci pod wplywem autohipnozy”) and included the following paragraph:
“Some people easily reach for personal arguments. The Gazeta Wyborcza journalist S.B., in a conversation with me stated: professor Zybertowicz speaks now, although during the communist times he was quiet. This is classic. A.M. repeatedly said: I spent so many years in prison, so now I am right. Unfortunately, moral integrity in one situation does not automatically indicate a complete cognitive judgment in another situation.” (“Niektórzy z łatwością sięgają w niej po argumenty personalne. Dziennikarz „Gazety Wyborczej” S.B. w dyskusji ze mna oznajmił: prof. Zybertowicz teraz zabiera glos, choć za komuny siedział cicho. To już klasyka. A.M. wielokrotnie powtarzał: ja tyle lat siedziałem w więzieniu, to teraz mam racje. Niestety, z ewentualnej prawości moralnej w jednej sytuacji nie wynika automatycznie zdolność do kompletnej oceny poznawczej w innej”)
The text was published in a column: ‘polemic/discussion/analysis’.
9. On 26 and 27 March 2007 a legal representative of A.M., an editor-in chief of Gazeta Wyborcza, one of the biggest daily newspapers, sent a legal letter to the applicant, offering to settle the issue amicably provided that the applicant published a relevant apology. He referred to the phrase: “This is classic. A.M. repeatedly said: I spent so many years in prison, so now I am right”
10. The applicant refused the request and published the letter in Rzeczpospolita on 10 April 2007.
B. Civil proceedings against the applicant
11. On 30 April 2007, 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 15,000 Polish zlotys (PLN) (approximately 3,570 euros (EUR)) to a charity.
12. On 17 December 2007 the Warsaw Regional Court allowed the plaintiff’s claim. It ordered the applicant to publish an apology on the first, second or third page of Rzeczpospolita for publishing untrue information. It further determined the exact length of the apology (not smaller than 10 x 15 cm) and ordered the applicant to pay PLN 10,000 (approximately EUR 2,380) to a charity and PLN 1,500 (approximately EUR 357) in court fees.
13. During the proceedings the court questioned the applicant, the plaintiff and the journalist M.Z. The court did not take into consideration two private expert opinions on language analysis provided by the applicant and A.M. The court further stressed that while the parties’ representatives had questioned these opinions they had not asked for a court-appointed expert on linguistics nor requested that their experts be heard by the court as witnesses. The court did not find any basis to appoint an expert of its own motion.
14. The Warsaw Regional Court considered that the phrase “A.M. repeatedly said: I spent so many years in prison, so now I am right” was a statement of fact, given that it was a phrase allegedly used many times by A.M. However, it had not been proved that A.M. had ever used the above words.
15. The applicant claimed before the court that the phrase used in the interview was an acceptable journalistic summary of A.M.’s opinions and his set of views demonstrated during numerous public appearances. According to the applicant, it was possible to summarise one’s way of thinking. He further confirmed that he was not aware of any public speech given by A.M. which included the phrase in question. However, the phrase was not a direct quote, since it was not in quotation marks. It was a reconstruction, interpretation and paraphrase, demonstrating A.M.’s mindset. He submitted examples of numerous public statements made by A.M. between 1982 and 2007, in which A.M. had referred to his stay in prison during the communist-era.
16. The court considered that even though the phrase was not in quotation marks, it was a direct quote, since there was a colon, thus: “A.M. repeatedly said: ...”. The court referred to the Polish language dictionary of 1996 according to which a colon was used in particular to introduce direct quotations such as in the present case. Since A.M. had never used these exact words this information was untrue and had breached his personal rights. The court further went on to examine whether the statement could have been treated as an acceptable paraphrase, and considered, referring to the same Polish dictionary, that it was not possible to paraphrase a set of moral views. In conclusion the court held that A.M.’s personal rights had been breached because the applicant had failed to prove that he was acting within the existing legal order.
17. On the applicant’s appeal, on 15 October 2008 the Warsaw Court of Appeal (Sąd Apelacyjny) upheld the first-instance judgment and ordered the applicant to pay PLN 1,170 (approximately EUR 278) in court fees for the proceedings before the second-instance court. The court agreed with the reasoning presented by the Regional Court. It considered that the use of the colon, as in “A.M. repeatedly said: ...” would indicate the factual nature of the phrase. This view was made with reference to general knowledge and did not need any special information. It further held that this phrase could not be considered to be a “paraphrase”. However, as no expert opinion on linguistics was obtained, further reflections on this issue were pointless.
18. The court further examined numerous quotes from A.M.’s public appearances, and established that in none of those statements A.M. had used the exact phrase attributed to him. Consequently, the court considered that the phrase used by the applicant had breached the plaintiff’s personal rights, in particular his credibility, reputation and good name, showing him as petty-minded. In view of the plaintiff’s professional situation, it impeded him from practising his profession and damaged his position as editor-in-chief of one of the biggest daily newspapers.
19. The applicant lodged a cassation appeal. In particular, he referred to Article 10 of the Convention, and pointed out that the Court of Appeal had failed to obtain an expert opinion on linguistics.
20. On 25 February 2010 the Supreme Court (Sąd Najwyższy) dismissed the applicant’s appeal. The court referred to the reasons given by the lower courts. It further confirmed that while under Article 232 of the Civil Procedure Code (“CCP”) a court might obtain evidence of its own motion, such situations were exceptional. In the present case it had not been necessary to order an opinion from an expert on linguistics. As correctly noted by the Court of Appeal the decisive factor for interpretation was the understanding of an average reader. The newspaper Rzeczpospolita was addressed to a wide group of recipients and therefore these articles should have been interpreted according to widely acceptable interpretation rules. Lastly, the court explained that the phrase in question had not ceased to be informative with reference to the personality of the parties. Furthermore, it could not have been perceived differently, because it had been made in the context of a public debate on lustration of journalists. The way an article was perceived depended on the choice of words rather than its political context or publication in a particular column. The Supreme Court also ordered the applicant to pay PLN 270 (approximately EUR 64) in court fees for the appeal proceedings.
C. Enforcement proceedings and the public reaction
21. The applicant paid PLN 10,000 (approximately EUR 2,380) to a charity in October 2008. At the same time he also arranged for the publication of an apology in Rzeczpospolita, for which he paid PLN 3,502.62 (approximately EUR 900).
22. During the proceedings against the applicant, several thousand people signed a letter titled ‘Defending freedom of expression’, which was handed to the Ombudsman on 21 November 2008. They argued that a publicist had a right to express this type of opinion about other participants in a public debate.
23. In reply, on 26 November 2008 a group of Polish intellectuals published a letter, titled ‘Against lies’, in which they stressed that freedom of expression had limits, in particular the other person’s right to dignity and good name. Therefore, in their opinion, spreading untrue information was not protected by any law.
II. RELEVANT DOMESTIC LAW AND PRACTICE
A. The Civil Code
24. 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.”
25. 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.
26. Under Article 448 of the Civil Code, a person whose personal rights have been infringed may seek compensation. The relevant part of that provision 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. ...”
B. The Civil Procedure Code
27. Pursuant to Article 232 of the Civil Procedure Code the parties are obliged to submit evidence necessary to decide the case. The court may, however, admit and take evidence not submitted by a party.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION
28. The applicant complained under Article 10 of the Convention of a breach of his right to freedom of expression. That Article reads as follows:
“1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.
2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.”
A. Admissibility
29. The Court notes that the application is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.
B. Merits
1. The applicant’s submissions
30. The applicant submitted firstly that his statement had not been a quotation of A.M.’s words but a paraphrase of his views. The paraphrase was justified, since A.M. had presented such opinions in numerous public declarations (almost seventy of them), and such evidence had been submitted to the domestic court.
31. The applicant stressed that his statement had been an opinion that A.M.’s moral integrity in one situation did not mean that A.M. was right in the current debates.
32. He further maintained that the domestic courts had failed to address the issue that A.M. was a public figure, engaged in public life and debates about most of the political and social questions in Poland. Since 1989 he had been one of the most important public opinion formers. Therefore he should have accepted that his opinions would be subject to criticism.
33. Taking all those elements into account, the applicant considered that his statement had not overstepped the limits of the protection afforded to him by Article 10 of the Convention.
2. The Government’s submissions
34. The Government submitted that the colliding rights which had prevailed over the applicant’s freedom of expression were the good name, reputation and credibility of the editor-in-chief of Gazeta Wyborcza. They further argued that the statement published by Rzeczpospolita amounted to a factual statement. The domestic court carefully analysed the statement and found that it was presented as information (“A.M. repeatedly said”), not as an opinion or an assessment. They further considered that the applicant as a publicist and a professor at Torun University was a public figure. Likewise, A.M., as an editor-in-chief of one of the biggest newspapers, was a public figure. Since the applicant’s article concerned lustration of journalists it formed part of a public debate. However, the statement was of a very serious nature, and the applicant had failed to act with due diligence and had not complied with the obligation to verify a factual allegation.
35. They also maintained that the statement had not been spontaneous. The transcript of the interview had been sent to the applicant by email, and he had sent it back with minor corrections. In addition, he had not responded positively to a proposal from A.M. to settle the case amicably.
36. The Government noted that the applicant had not asked for a court-appointed expert on linguistics, and owing to the adversarial nature of the proceedings the domestic courts had not been obliged to obtain such evidence of their own motion. The domestic courts provided detailed reasoning for their decisions. Lastly, the Government observed that the applicant was only ordered to publish an apology and to pay PLN 10,000 to a charity.
37. Consequently, the Government invited the Court to find no violation of Article 10 of the Convention in the present case.
3. The Court’s assessment
(a) The general principles
38. The general principles for assessing whether an interference with the exercise of the right to freedom of expression is “necessary in a democratic society” within the meaning of Article 10 § 2 of the Convention are well settled in the Court’s case-law. They were recently restated in Pentikäinen v. Finland ([GC], no. 11882/10, §§ 87-88, ECHR 2015), and Bédat v. Switzerland ([GC], no. 56925/08, § 48, 29 March 2016).
39. The Court must also ascertain whether the domestic authorities struck a fair balance, taking into consideration the margin of appreciation afforded to the Contracting States, between the protection of freedom of expression as enshrined in Article 10 and the protection of the reputation of those against whom allegations were made, a right which, as an aspect of private life, is protected by Article 8 of the Convention. In two fairly recent cases, the Court defined its own role in balancing these two conflicting interests. It went on to identify a number of relevant criteria where the right to freedom of expression is balanced against the right to respect for private life (see Axel Springer AG v. Germany [GC], no. 39954/08, §§ 82-95, 7 February 2012, and Von Hannover v. Germany (no. 2) [GC], nos. 40660/08 and 60641/08, §§ 101-113, ECHR 2012).
(b) Application of the above principles to the present case
40. It was not disputed that the courts’ decisions in the present case and the sanctions imposed on the applicant amounted to an “interference” with his right to freedom of expression, as guaranteed by Article 10 § 1 of the Convention. Such an interference was undoubtedly prescribed by law, namely under Articles 23 and 24 of the Civil Code. The Court further accepts that the interference pursued the legitimate aim of protecting the reputation or rights of others – namely, the good name, reputation and credibility of A.M. – within the meaning of Article 10 § 2 of the Convention. Accordingly, the only outstanding issue is whether the interference with the applicant’s right to freedom of expression was “necessary in a democratic society”.
41. In the instant case the applicant, in an interview for Rzeczpospolita on the subject of lustration of journalists, stated that A.M. had “repeatedly said: I spent so many years in prison, so now I am right”. The domestic courts examined the veracity of this statement and concluded that it could not be proven that the plaintiff had ever expressed those exact words. The applicant’s statement was thus considered untrue, and according to the domestic courts, such an untrue statement had to be regarded as illegal.
42. The Court takes note of the fact that the phrase in question carried a negative assessment of A.M.’s mindset and could have affected his good name and reputation. The domestic authorities were thus faced with the difficult task of balancing two conflicting values, namely freedom of expression for the applicant on one hand, and A.M.’s right to respect for his reputation on the other (see Axel Springer AG [GC], cited above, § 84). In such cases one factor the Court has taken into account is the position of the person concerned by the publication: whether or not he or she was a “public figure” or had otherwise “entered the public scene” Another important factor is whether the statement in question contributed to a debate of general interest (see Krone Verlag GmbH v. Austria, no. 27306/07, § 53, 19 June 2012).
43. In the present case, the Court observes that A.M. is a former dissident, a leading Polish intellectual, and an editor-in-chief of one of the biggest daily newspapers who is actively engaged in public life and political debates on current issues. The Court has already held that journalists and publicists, like other persons actively involved in public life, should display a greater degree of tolerance for criticism against them (see Kurski v. Poland, no. 26115/10, § 50, 5 July 2016).
44. The Court further considers that the statement at issue dealt with a matter of public concern, namely the issue of lustration of journalists. Such a matter could, and in the present case did, give rise to a public debate. In this respect the Court reiterates that there is little scope under Article 10 § 2 of the Convention for restrictions on freedom of expression when a matter of public interest is at stake (see Couderc and Hachette Filipacchi Associés v. France [GC], no. 40454/07, § 96, ECHR 2015 (extracts)).
45. In the Court’s opinion, in the present case the context in which the impugned statement was made was not given sufficient consideration by the domestic courts. It appears that the domestic courts failed to address the question of whether the applicant had been engaged in a public debate. In particular, the Supreme Court had expressly stated that the phrase in question should have been interpreted literally and not with reference to any public debate context (see paragraph 20 above).
46. According to the established case-law of the Court, the examination of an interference with freedom of expression has to duly take into account the nature of the impugned statements. With regard to classification of the statement at issue, the applicant argued before the domestic courts that his statement had been an acceptable paraphrase of A.M.’s views and opinions presented in numerous public declarations (see paragraph 15 above). The domestic courts considered that the use of a colon after “A.M. repeatedly said: ...” indicated that the phrase was a direct quote (see paragraphs 16, 17 above). The Court is unpersuaded by the above approach of the domestic courts. It notes that the phrase at issue does not lend itself to a clear categorisation. It is neither a simple statement of fact nor a value judgment. In the Court’s view the impugned phrase could be understood as the applicant’s interpretation of statements made by A.M. and his stance in the public debate. Consequently, the critical issue for the proportionality of the interference is the question of a reasonable basis for the impugned interpretation, since even a value judgment without any factual basis to support it may be excessive (see Jerusalem v. Austria, no. 26958/95, § 43, ECHR 2001‑II). The Court notes in this respect that the applicant submitted in the domestic proceedings numerous quotes from A.M.’s public appearances in which A.M. referred to his stay in prison during the communist-era (see paragraphs 15 and 18 above). However, the domestic courts failed to take into account the particular nature of the impugned utterance and consequently did not examine the question whether the material available to them could be considered as a reasonable basis for the interpretation proposed by the applicant.
47. Lastly, the Court reiterates that in the context of assessing proportionality, irrespective of whether or not the sanction imposed was a minor one, what matters is the very fact of judgment being given against the person concerned, including where such a ruling is solely civil in nature (see Couderc and Hachette Filipacchi Associés, cited above, § 151). In the present case the applicant was ordered to arrange for the publication of an apology (costing PLN 3,502.62, or approximately EUR 833), and to pay PLN 10,000 (approximately EUR 2,380) to a charity. The Court cannot consider these sums to be insignificant.
48. In the light of the above, the Court concludes that the reasons given by the domestic courts cannot be regarded as a sufficient justification for the interference with the applicant’s right to freedom of expression. The domestic courts therefore failed to strike a fair balance between the competing interests. Moreover, this conclusion cannot be affected by the fact that the proceedings complained of were civil rather than criminal in nature.
49. Accordingly, the interference complained of was not “necessary in a democratic society” within the meaning of Article 10 § 2 of the Convention. There has therefore been a violation of Article 10 of the Convention.
II. APPLICATION OF ARTICLE 41 OF THE CONVENTION
50. Article 41 of the Convention provides:
“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”
A. Damage
51. The applicant claimed repayment of the costs ordered by the domestic courts, in total PLN 16,442.62 (approximately EUR 3,915). That sum represented: PLN 2,940 (approximately EUR 700) paid by the applicant to the plaintiff in reimbursement of the costs of the proceedings, PLN 10,000 (approximately EUR 2,380) paid to a charity and PLN 3,502.62 (approximately EUR 833) for the costs of publishing the apology ordered by the domestic courts. He further asked for non-pecuniary damages without specifying an amount, and left this question to be decided by the Court.
52. The Government submitted that the applicant’s claims were unsubstantiated. They further asked the Court to make no award under the head of non-pecuniary damage.
53. The Court considers that the applicant is, in principle, entitled to recover any sums that he has paid in fines and costs, by reason of their direct link with the national court judgments which the Court found to be in breach of his right to freedom of expression (see Ziembiński v. Poland (no. 2), no. 1799/07, § 54, 5 July 2016). The claim made by the applicant thus falls under the heading of pecuniary damage. Having regard to the above, the Court awards the applicant EUR 3,915 in respect of pecuniary damage, this sum corresponding to the combined amount of fine and costs.
54. Furthermore, the Court considers that the applicant must have suffered distress and frustration resulting from the breach of his right of freedom of expression. Making its assessment on an equitable basis the Court awards the applicant EUR 2,000 in respect of non-pecuniary damage.
B. Costs and expenses
55. The applicant claimed PLN 2,440 (approximately EUR 580) for the costs of his legal representation before the domestic courts, and PLN 1,000 (approximately EUR 238) for other costs related to domestic proceedings (travel, accommodation, and postage). He further asked for PLN 12,300 (approximately EUR 2,928) for the costs of his legal representation before the Court. He submitted a legal services agreement made with his representative.
56. The Government argued that only costs actually incurred in the preparation and defence of the applicant’s case before the Court should be taken into consideration.
57. According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award the sum of EUR 3,508 covering the fees of the lawyers representing the applicant before the domestic courts in Poland and in the proceedings before this Court.
C. Default interest
58. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.
FOR THESE REASONS, THE COURT, UNANIMOUSLY,
1. Declares the application admissible;
2. Holds that there has been a violation of Article 10 of the Convention;
3. Holds
(a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following amounts, to be converted into the currency of the respondent State at the rate applicable at the date of settlement:
(i) EUR 3,915 (three thousand nine hundred and fifteen euros), plus any tax that may be chargeable, in respect of pecuniary damage;
(ii) EUR 2,000 (two thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;
(iii) EUR 3,508 (three thousand five hundred and eight euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses;
(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;
4. Dismisses the remainder of the applicant’s claim for just satisfaction.
Done in English, and notified in writing on 17 January 2017, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Marialena TsirliAndrás Sajó
RegistrarPresident
In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the separate opinion of Judge Kūris is annexed to this judgment.
A.S.
M.T.
CONCURRING OPINION OF JUDGE KŪRIS
At the heart of the present case is a conflict between the applicant and A.M., the target of the impugned statement by the former. The same applies to the case of Zybertowicz v. Poland (no. 2) (no. 65937/11, 17 January 2017), which was examined by the same Chamber on the same day. Given the related factual background of the two cases and the fact that they raise in essence the same issue, there were compelling arguments in favour of joining the applications. The joinder of the cases would have provided an additional contextual dimension to the factual and legal issues under examination, especially in view of the fact that in both judgments the Court has placed emphasis also on the context of the applicant’s statements against the same person.
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