5.  The applicant was born in 1954 and lives in Toruń.
6.  He is a publicist and a professor of sociology.
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.
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.
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.