Information Note on the Court’s case-law 40
March 2002
Gawęda v. Poland - 26229/95
Judgment 14.3.2002 [Section I]
Article 10
Article 10-1
Freedom of expression
Refusal to register titles of periodicals: violation
Facts: The Regional Court refused the applicant’s request for registration of the title of a periodical, “The Social and Politicial Monthly – A European Moral Tribunal”, to be published in Kęty. The court considered that the title suggested that a European institution had been established in Kęty, which was untrue and misleading for prospective buyers. The Court of Appeal rejected the applicant’s appeal. The Regional Court subsequently refused the applicant’s request for registration of the title “Germany – A Thousand Year-old Enemy of Poland”, considering that registration of a periodical with such a title would be harmful to Polish-German relations. The Court of Appeal upheld the decision, considering that the title would be in conflict with reality. At the material time, an Ordinance of the Minister of Justice on the register of periodicals, issued pursuant to the Press Act, provided that registration was not permissible if it would be in conflict with the regulations in force and with reality. The Press Act itself provides for refusal of registration if the request does not contain the required data or if the proposed title would prejudice a right to protection of the title of an existing periodical.
Law: Article 10 – Under Polish law, the refusal to register the title of a periodical is tantamount to a refusal to allow its publication and the refusal of the applicant’s requests thus amounted to an interference with his Article 10 rights. Although Article 10 does not in terms prohibit the imposition of prior restraints on publications, the relevant law must provide a clear indication of the circumstances in which such restraints are permissible, especially when the consequences of the restraint are to block publication completely. In the present case, the courts relied essentially on the Ordinance of the Minister of Justice in so far as it required that registration be refused if “in conflict with reality”. They thus inferred from that notion a power to refuse registration where they considered that a title conveyed an essentially false picture. While the terms used were ambiguous and lacked the clarity to be expected in a legal provision of this nature, they suggested at most that registration could be refused where the request for registration did not comply with the technical requirements specified in the Press Act. To go further and require that the title of a magazine embody truthful information was inappropriate from the standpoint of freedom of the press: a title of a periodical is not a statement as such, since its function is essentially to identify the periodical on the press market for its actual and prospective readers. Moreover, such interpretation would require a legislative provision which clearly authorised the courts to do so. In short, the interpretation given by the courts introduced new criteria, which could not be foreseen on the basis of the text specifying situations in which the registration of a title could be refused. Previous interpretations of the provisions had not provided a basis for the approach adopted by the courts in the present case and the fact that the case-law of the Polish courts did not show that the provisions were particularly difficult to interpret only highlighted the lack of foreseeability of the interpretation given by the courts in the present case. While the judicial character of the system of registration was a valuable safeguard of freedom of the press, the decisions given by the national courts in this area must also conform to the principles of Article 10. In the present case, this in itself did not prevent the courts from imposing a prior restraint on a printed media in a manner which entailed a ban on publication of entire periodicals on the basis of their titles. The law applicable was not formulated with sufficient precision to enable the applicant to regulate his conduct. Therefore, the manner in which restrictions were imposed on the applicant’s exercise of his freedom of expression was not “prescribed by law”.
Conclusion: violation (unanimously).
Article 41: The Court made awards in respect of non-pecuniary damage and costs and expenses.
© Council of Europe/European Court of Human Rights
This summary by the Registry does not bind the Court.
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