5.  The applicant was born in 1976 and lives in Warsaw.
6.  The applicant is a journalist working for The World of Cars (Auto Świat) a weekly motoring magazine.
7.  In August 2006 the Competition and Consumer Rights Office (Urząd Kontroli Konkurencji i Konsumentów) published a report on its official website, summarising the results of a countrywide survey concerning the quality of motor fuel sold by petrol stations. It listed, inter alia, a number of petrol stations, including their names, addresses and owners, where samples of diesel and petrol taken during that survey did not meet the quality requirements imposed by the applicable regulations.
8.  On 14 August 2006 the magazine published a series of articles. It presented the most drastic cases of fraud and described the impact that use of adulterated fuel had on the vehicles. It also summarized the results of the survey. It was divided into five parts: “You can make an official complaint” (Tu można złożyc skargę), “Brand names take care of the quality of fuel” (Firmowe stacje dbają o jakość), “Costly repairs” (Kosztowne naprawy) and “We go public with the names of fuel crooks” (Ujawniamy oszustów paliw). The latter article referred to the results of the survey and had the applicant’s name in the byline. The article also included a table entitled “Stations selling counterfeit fuel” (Stacje fałszujące paliwa).
9.  The table shown was based on the Competition and Consumer Rights Office report and consisted of four columns listing the town, the name of the company running the station and information on the quality of the diesel and petrol sold there. The fuels were rated as either “good quality” or “bad quality”; at least one fuel in all the listed stations was rated as “bad quality”. No mention was made of the degree to which standards had been breached or of the kind of standards concerned in each case. The station owned by the complainant in the subsequent criminal proceedings (see paragraphs 12‑26 below) was included into the list with the following information: “Diesel – good quality, gasoline – bad quality”.
10.  The front page of the magazine bore the title “Report: stations selling adulterated fuel. Troubling results of survey. The World of Cars publishes addresses of petrol stations where you should not buy fuel.” (Raport: które stacje sprzedają fałszywe paliwo. Niepokojące wyniki kontroli. Auto-Świat podaje adresy, gdzie nie należy tankować).
11.  On 30 August 2006 B.J., the owner of one of the stations listed in the table referred to above, asked the magazine’s editor to publish a retraction of the statement concerning his business. In a reply of 7 September 2006 the publisher replied that their article had been based on the report of the Competition and Consumer Rights Office.
12.  On 2 December 2006 B.J. brought a private prosecution against the applicant with the Hrubieszów District Court. He submitted that the press report had damaged his reputation and good name; that he sold fuel bought from renowned suppliers; that he did not adulterate it; and that the data published by the Office had not indicated that he had done so. He relied on Article 212 of the Criminal Code (defamation (zniesławienie)).
13.  The case was subsequently transferred to the Warsaw‑Mokotów District Court.
14.  On 10 September 2008 that court, without holding a hearing discontinued the criminal proceedings, finding that the applicant had no case to answer. It noted that civil proceedings against the applicant had been instituted by B.J. and were at that time pending before the civil courts (see paragraphs 28-29 below). The facts of the case which the court had established on the basis of the case file of the civil proceedings were not in dispute between the parties. The applicant had not committed a criminal offence as information published in the impugned article had been based on official data publicly available via the Internet. He had therefore had good grounds to assume that it had been true. The editors of the magazine and the applicant had acted to protect the legitimate interests of car owners. As selling adulterated motor fuel had been known to be very common and as it had been causing serious damage to car engines, the issue had been hotly debated and had caused considerable public concern and anger.
15.  The court lastly noted that a civil forum was more appropriate for the purposes of dealing with similar cases.
16.  B.J. appealed against the decision.
On 18 June 2009 the Warsaw Regional Court allowed the appeal. It noted that the contested decision had been taken with the court referring to a civil case which had previously been lodged by the garage owner and which had been pending at that time. However, this decision had been premature as a hearing should have been held in order to establish all the relevant facts. The court acknowledged that the applicant had relied on the official report, but noted that phrases such as “fuel crooks” had not been included therein. Consequently, it could not have been determined at that point in time whether these statements had been true. The court remitted the case for reconsideration to the Warszawa-Mokotów District Court.
17.  On 10 November 2009 the Warszawa-Mokotów District Court found the applicant guilty of the offence of defamation under Article 212 of the Criminal Code. It imposed on him a fine of 2,000 Polish zlotys (PLN, approx. 500 euros (EUR)), ordered him to pay PLN 500 (approx. EUR 125) to a charity and to reimburse B.J.’s legal costs in the aggregate amount of PLN 2,760 (approx. EUR 690).
18.  The court noted concordant testimony from a number of witnesses that the problem of selling adulterated motor fuel had been a serious one and that it had given rise to an ongoing discussion and to measures being taken by the State authorities in order to prevent and penalise it. It accepted that it had been an issue of public interest.
It noted that J.K., a witness in the case, had testified that after the article many clients in the town had stopped buying fuel at the station owned by B.J.
19.  It had regard to an expert opinion which confirmed that the petrol sold by B.J. had not corresponded to the official standards. The expert had indicated a number of possible causes. Adulteration of the petrol by the addition of heating oil had been one of them. He stated that the non‑compliance of the fuel sold by B.J. at the time of the survey had not been significant and that it could not have damaged car engines.
20.  The court was of the view that it had not been demonstrated to its satisfaction that B.J. had adulterated the petrol he had sold. The applicant had not shown that this had indeed been the case. The deterioration of its quality could have been caused by other factors over which the owner of the station had had no control. The applicant had failed to show proper diligence by publishing the results of the survey made by the Competition and Consumer Rights Office and by referring, in the title of the table referred to above, to “[s]tations selling adulterated fuel”. The title of that table was a simplification which clearly ascribed negative intentions and conduct to the owners of the stations concerned.
21.  While it was true that an administrative fine had been imposed on B.J., the prosecuting authorities had decided not to institute criminal proceedings against him because the applicable standards had been breached only minimally at his station. Hence, in the court’s view it had been inappropriate to include the name of his company in the table entitled “Fuel crooks”. Prior to the publishing of the impugned information, the applicant should have checked how exactly B.J. had breached the official standards and whether these shortcomings could indeed have caused damage to car engines. Instead, he had uncritically published the information from the Competition and Consumer Rights Office report, putting B.J. on a par with those who pursued the dangerous practice of adulterating petrol by adding heating oil to it and breaching the quality standards a hundred- or a thousand-fold.
22.  The court acknowledged that the applicant’s intentions had been legitimate, but the use of words such as “crook” or “forger” to describe B.J.’s conduct had not been justified. The newspaper should have used more appropriate and precise language.
23.  The applicant appealed. He argued, inter alia, that his conviction had been incompatible with Article 10 of the Convention in so far as the court had failed to address substantive issues arising under this provision in the case, including the case-law of the Court; that the issues raised by him had been the subject of an ongoing public debate, a fact which had not been sufficiently taken into consideration by the court; that the information contained in the article had consisted merely of data relayed from an official document prepared by the State; that it had not been for the applicant to assess the veracity of this information; that he had therefore had a right to assume that it had been true and had therefore not been obliged to contact the owner of the station prior to the article’s publication. He lastly argued that the court had failed to make a distinction between untrue information and information which the applicant had been justified in thinking had been true. He concluded that the interference had been excessive and not necessary in a democratic society.
24.  By a judgment of 21 April 2011, served on the applicant’s lawyer on 7 June 2011, the Warsaw Regional Court essentially upheld the contested judgment (save for a part amended for a technicality). It further increased the legal costs to be paid to a total of PLN 4,244. It shared the conclusions of the lower court as to the legal assessment of the facts of the case.
25.  In so far as the applicant relied on Article 10 of the Convention and referred to the Court’s case-law, the court noted that both this provision and the provisions of the Constitution guaranteed a right to freedom of expression, but this freedom was not unlimited. It could be restricted for the purposes of, inter alia, the protection of the rights of others. In the present case the impugned article contained offensive terms and had thereby breached B.J.’s rights. It could not therefore be accepted that it had served any legitimate public aim. In particular, it could not be accepted that the article had amounted to a mere retransmission of the information contained in the report of the Competition and Consumer Rights Office.
26.  In so far as the applicant relied on the case-law of the Court, the Regional Court observed that the Polish courts, as in any other continental jurisdiction, were not bound by the judgments of the Court as the Polish legal system was not based on precedent. It had not been necessary for the lower court to rely on the Court’s case law. According to the appellate court, although it shared the applicant’s views based on the Court’s case law on the freedom of expression presented in his appeal, those views were not relevant for the adjudication of the case (nie mają one znaczenia dla rozstrzygnięcia niniejszej sprawy) The applicant’s point in this matter had therefore been wholly erroneous (całkowicie chybiony). The appellate court was well aware of the role of the media in a pluralist and democratic society, but the press was obliged to present truthful or at least carefully verified information to the public and to show diligence and thoroughness. The applicant had failed to do so and the information he had published had seriously damaged B.J.’s reputation.
27.  On 31 January 2008 the Warsaw Regional Court gave a judgment in the civil case for the protection of personal rights brought by B.J. against the applicant, the editor-in-chief of the magazine and its owner.
28.  On 25 March 2009 the Warsaw Court of Appeal partly amended this judgment. The defendants were obliged, jointly, to pay PLN 10,000 (approx. EUR 2,500) to the plaintiff and to apologise to the plaintiff.