CASE OF KURSKI v. POLAND

1. The case originated in an application (no. 26115/10) 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 Jacek Kurski (“the applicant”), on 5 May 2010.
2. The applicant was represented by Mr R. Janoś, a lawyer practising in Warsaw. The Polish Government (“the Government”) were represented by their Agent, Mrs J. Chrzanowska of 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 the application was communicated to the Government.
I. THE CIRCUMSTANCES OF THE CASE
5. The applicant was born in 1966 and lives in Gdańsk.
6. At the relevant time, the applicant was a member of the Polish Parliament and a member of the Law and Justice party.
7. On 8 May 2006 the applicant and several other politicians, experts and journalists, participated in a live television programme, Warto rozmawiać ( “ It ’ s good to talk ” ), shown on TVP2. The programme was also broadcast on TVP Polonia on two consecutive days.
8. During the programme the applicant took out a copy of Gazeta Wyborcza, a Polish daily newspaper and, pointing to particular pages, said:
“I would like to show you the nature of the relationship between this media agreement (“ uklad” ) ... and the attacks on Law and Justice. I will show you Gazeta Wyborcza, which for the first seven pages, for example today, is a frenzied attack on Law and Justice. Out of modesty I will not mention that a horrible piece about me, full of lies, is on the first page. On the second page, a frenzied attack on Kaczyński and the Polish Families League. Here, “Students fear flogging”, etc. etc., “Radio Maryja miracles”. This is just obsessive propaganda. But let ’ s go further, to page thirty-five. And what do we see? We see an advertisement entitled “We have built one of the world ’ s biggest stock markets with the participation of Polish shareholders. We are proud of that .” This is an advertisement for the company J&S S. A. ...
So the paradox is that usually in newspapers they advertise washing powders, cosmetics, beers, or cars, that is, widely available consumer goods ( powszechnego nabycia ). This [company] is a monopolist. It does not need any advertising. This company imports most of the crude oil into Poland and drives billions of euros away from Poland to another company, which is registered somewhere in Cyprus. This is not about an advertisement. This is [about] financing mass propaganda against Law and Justice through an agreement which has been threatened by Law and Justice, so that such dubious deals ( geszefty ) ...
The point is that Law and Justice has interfered with extremely serious connections, which have been draining ...
Just one sentence ... but the jokes are over, and this structure ( układ ) understood that there will be no early elections, there will be no minority government, this is a chance for an institutional construction ...”
9. During the applicant ’ s statement one of the journalists interrupted him by saying: “But this would be more appropriate if someone from Gazeta Wyborcza was here. ” However, the applicant continued with his statement.
10. On 16 May 2006, Agora S.A., the publisher of Gazeta Wyborcza, brought a civil claim against the applicant for the protection of its rights. It claimed that the applicant ’ s statements during the television programme on 8 May 2006 had harmed its good name and credibility and asked that the applicant be made to have an apology published in Gazeta Wyborcza and broadcast on TVP2 and to pay 25,000 Polish zlotys (PLN) to a charity.
11. On 12 June 2007 the Warsaw Regional Court granted the claim and ordered the applicant to issue an apology via Gazeta Wyborcza and TVP 2 for the statements he had made. It further ordered the applicant to pay PLN 10,000 (approximately 2,500 euros (EUR) to a charity and PLN 2,410 (approximately EUR 600) in court fees.
12. The text of the apology to be published by the applicant was as follows:
“I declare that the public statement I made during the programme Warto rozmawiać, broadcast on 8 May 2006 on TVP2, included untrue, defamatory allegations and suspicions about AGORA S.A., a company registered in Warsaw, and about its publishing activity regarding Gazeta Wyborcza. I confirm that those allegations caused negative consequences for AGORA S.A in conducting their business activities, in particular a loss of indispensable credibility and trust.
Consequently, I apologise to the Warsaw-registered company AGORA S.A. (the publisher of Gazeta Wyborcza ) for having publicly disseminated untrue, defamatory statements which could have harmed its good name, credibility and reputation.
The above statement is made as a consequence of losing a civil case. ”
13. During the proceedings the applicant submitted that it had not been his intention to offend the plaintiff. In the television programme he had merely expressed a value judgment relating to aggressive and clearly one-sided articles published in Gazeta Wyborcza. He further noted that as his statements had been value judgments he had not had to prove their veracity.
14. The court considered that the applicant had breached the plaintiff ’ s rights, in particular in respect of its good name, credibility and reputation. It could be seen from the applicant ’ s statement that he had wished to point out to the audience that the plaintiff and Gazeta Wyborcza had had some kind of media/business agreement, whereby articles against Law and Justice had been published in Gazeta Wyborcza and financed via advertisements.
15. The court observed that the applicant ’ s statement had contained both facts and conclusions drawn from those facts.
16. The court further observed that an accusation that a newspaper had published articles ordered by a sponsor was clearly offensive to the publisher. Likewise, it was offensive to the publisher to be associated with a company that allegedly conducted morally doubtful activities. The defendant had not submitted any evidence in support of his allegations. He had failed to explain on what basis he had drawn the conclusion that the income obtained from a particular advertisement had resulted in articles being published in Gazeta Wyborcza. Furthermore, there had been no reason to believe that the income obtained from the J&S S. A. advertisement had been connected with any particular articles in Gazeta Wyborcza, particularly the ones that the applicant had referred to as “a frenzied attack on Law and Justice”.
17. The court stressed that J&S S. A. had at the relevant time placed advertisements in several newspapers and magazines. However, the applicant had not alleged that those other newspapers or magazines had been involved in the alleged agreement ( układ ). The court pointed out that a publisher could not refuse to publish an advertisement unless one of the grounds set out in the press law existed, which had not been the situation in the present case. Moreover, as a rule, a publisher was not responsible for the content of advertisements.
18. The court did not agree with the applicant that he had not wished to infringe the plaintiff ’ s rights. It noted that the applicant had prepared in advance to make the statement in question. He had already had a copy of Gazeta Wyborcza when he had entered the television studio and he had had it in his hand while making the statement. In the court ’ s opinion, the declaration had not been made spontaneously.
19. Lastly, the court observed that the applicant ’ s statement could not have been explained on the grounds that it had been in the public interest. On the contrary, it was in the public interest that public figures such as the applicant, a member of parliament, should base the opinions they expressed in the media on verified facts and did not breach the rights of others.
20. The applicant lodged an appeal against the judgment. He argued, amongst other things, that the Regional Court had wrongly classified his statements as facts and not as value judgments.
21. On 25 June 2008 the Warsaw Court of Appeal upheld the first ‑ instance judgment and ordered the applicant to pay 270 PLN (about EUR 67) in court fees for the proceedings at second instance.
22. The Court of Appeal considered that the first-instance judgment had not related to the part of the applicant ’ s statement concerning articles about himself and Law and Justice, even though he had called them “ frenzied attacks”, because it was well known that Gazeta Wyborcza was critical of Law and Justice and that was not something which needed to be proved. However, the applicant ’ s allegations that J&S S. A. had conducted unclear or even suspicious dealings under the cover of placing advertisements in Gazeta Wyborcza, and had in fact financed them only to destroy Law and Justice, which, for its part, had been fighting against the “agreement” between the company in question and Gazeta Wyborcza, had been statements of fact. Nevertheless, the applicant had not proved the truthfulness of his statements about the connections between the plaintiff and the J&S S. A. company.
23. The court agreed with the Regional Court that the applicant had prepared in advance to make the statement in question. The programme had concerned different issues and the statement had not been a response or reaction to the discussion between the participants. During the programme the applicant had kept a copy of Gazeta Wyborcza under his chair, which he had shown to the cameras at the relevant moment.
24. As regards the PLN 10,000 (about EUR 2,500) to be paid to a charity, the court considered that to be a modest sum and the costs of publishing an apology a normal consequence of the applicant ’ s wrongdoing.
25. The applicant lodged a cassation appeal against the judgment. He argued that the Court of Appeal had wrongly applied the standards of Article 10 of the Convention and had thus considered his statement to be one of fact rather than a value judgment. In his opinion, he had expressed value judgments during a public debate and had therefore not undermined the plaintiff ’ s good name.
26. The applicant ’ s cassation appeal was dismissed by the Supreme Court on 5 November 2009.
27. The court considered that the statement in question, in so far as it had concerned relations between J&S S.A. and Gazeta Wyborcza, had been a statement of fact. The applicant had spoken of suspicious links between Gazeta Wyborcza and the publisher of the advertisement and the creation of fictional reasons for receiving funds from that publisher, which was all aimed at allowing Gazeta Wyborcza to oppose Law and Justice. Such a statement, according to the court, had gone further than being a simple opinion about an advertisement in the press. Adding more information had put J&S S.A. ’ s advertisement in a completely different, negative light. Asking the applicant to prove such a statement had not been excessive and had not interfered with the freedom of political debate, but had been necessary for the accuracy and pertinence of such a debate.
28. The court further referred to Article 10 of the Convention and stressed that freedom of expression was not absolute. Noting the case of Feldek v. Slovakia (no. 29032/95, ECHR 2001 ‑ VIII), it further reiterated that where a statement amounted to a value judgment, the proportionality of the interference may depend on whether there existed a sufficient factual basis for the impugned statement, since even a value judgment without any factual basis to support it may be excessive. In the present case, the defendant had not even attempted to prove the accuracy of his statements about the alleged connections of which he had accused the plaintiff.
29. On 29 August 2008 Agora S.A. instituted enforcement proceedings in order to summon the applicant to comply with the obligations imposed by the Warsaw Regional Court ’ s judgment of 12 June 2007.
30. On 12 January 2010 the Warsaw District Court ordered the applicant to publish the apology in question in Gazeta Wyborcza (in a smaller size than originally indicated). Since the applicant failed to comply with that order, on 26 February 2010 the Warsaw District Court allowed Agora S.A. to publish the apology in Gazeta Wyborcza in the applicant ’ s name and ordered him to cover the costs of publication of PLN 34,897.36 (about EUR 8,700).
II. RELEVANT DOMESTIC LAW AND PRACTICE
31. 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.”
32. 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.
33. Under Article 448 of the Civil Code, a person whose personal rights have been infringed may seek compensation. That provision, in its relevant part, 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. ...”
I. ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION
34. 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.”
35. The Government contested that argument.
36. The Court notes that this complaint 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.
1. The applicant ’ s submissions
37. The applicant submitted that his statement on the television programme had been based on objective facts. The utterance which had allegedly infringed the rights of Agora S.A., the publisher of Gazeta Wyborcza, had been a conclusion based on those facts. Furthermore, the entire statement had been made in the course of a public debate and had been made in connection with the subject of the discussion, which had been on whether the new government coalition would change Poland. The applicant had presented facts and a logical conclusion based on those facts. While the conclusion might have been exaggerated, it had definitely been inferred from the facts that had been presented.
38. The applicant noted that the Court of Appeal had confirmed that Gazeta Wyborcza was critical of Law and Justice. He further pointed out that J&S S. A. had published an advertisement on page 35 of the copy of Gazeta Wyborcza in question. It was widely known that J&S S. A. imported most of Poland ’ s crude oil and that newspapers obtained funds for their activity from publishing advertisements. In addition, it was also widely known that Law and Justice was critical of the activities of J&S S.A. From those facts the applicant had presented a logical conclusion by saying :
“ This is not about advertisements. This is [about] financing through an agreement, which has been threatened by Law and Justice, about mass propaganda against Law and Justice so that such dubious deals ( geszefty ) ... ”
39. 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
40. The Government submitted that part of the applicant ’ s declaration made during the television programme had amounted to a statement of fact rather than to a value judgment and that the applicant should therefore have demonstrated the authenticity of the facts he had referred to. Yet the applicant had failed to prove the veracity of his allegations.
41. They further noted that at the relevant time the applicant had been a public figure so the matter might have been considered to be of general public concern. However, the applicant had failed to show what kind of business agreement he had meant or who had allegedly been a party to it. Consequently, it was not possible to say that the matter was of general public concern as one newspaper ’ s unfavourable attitude towards a political party was not, per se, contrary to the public interest.
42. They further noted that freedom of expression could not justify making public statements that were untrue and which infringed the personal rights of others. In addition, the language used by the applicant had been unnecessarily sensationalist, utterly negative and had included words that had gone beyond the exercise of freedom of expression.
43. They concluded by saying that the domestic courts had provided detailed reasoning for their decisions. Furthermore, the interference had not been disproportionate as the applicant had only been ordered to publish an apology in Gazeta Wyborcza and to pay PLN 10,000 to charity.
44. Consequently, the Government invited the Court to find no violation of Article 10 of the Convention in the present case.
45. 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 summarised and the case-law was cited in Perinçek v Switzerland ( [GC], no. 27510/08, § 196, ECHR 2015 (extracts) ).
46. The Court reiterates further that in its practice it has distinguished between statements of fact and value judgements. While the existence of facts can be demonstrated, the truth of value judgements is not susceptible of proof (see De Haes and Gijsels v. Belgium, 24 February 1997, § 47, Reports of Judgments and Decisions 1997-I, and Feldek, cited above, § 76).
47. The Court also observes that there is little scope under Article 10 § 2 of the Convention for restrictions on political expression or on debate on questions of public interest (see, among many other authorities, Wingrove v. the United Kingdom, 25 November 1996, § 58, Reports 1996-V, and Ceylan v. Turkey [GC], no. 23556/94, § 34, ECHR 1999-IV ).
(b) Application of the above principles to the present case
48. 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 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 Agora S.A., the publisher of Gazeta Wyborcza – 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”.
49. The applicant took part in a television programme where he showed a copy of Gazeta Wyborcza and, referring to particular articles, suggested that the newspaper, together with a company importing crude oil, J&S S. A. , were in some kind of business agreement, and that the company financed articles that were critical of the Law and Justice party (see paragraphs 7 and 8 above). The domestic courts examined the veracity of his statements and concluded that it had not been proven that the income obtained from J&S S.A. ’ s advertisement had been connected with any particular article in Gazeta Wyborcza. The applicant ’ s statements were thus considered untrue and, according to the domestic courts, such untrue statements had to be regarded as illegal.
50. The Court takes note of the fact that while the applicant ’ s allegations were quite serious for Gazeta Wyborcza, they were made against a newspaper, which by covering matters of public concern, has been actively involved in a public debate. In this respect the essential function the press fulfils in a democratic society must be emphasized. Although the press must not overstep certain bounds, its duty is nevertheless to impart – in a manner consistent with its obligations and responsibilities – information and ideas on all matters of public interest. In addition journalistic freedom also covers possible recourse to a degree of exaggeration, or even provocation (see Prager and Oberschlick v. Austria, 26 April 1995, § 38, Series A no. 313). These considerations play a particularly important role, given the influence wielded by the media in contemporary society: not only do they inform, they can also suggest by the way in which they present the information how it is to be assessed (see Stoll v. Switzerland [GC], no. 69698/01, § 104, ECHR 2007 V). In this context the Court considers journalists and publicists like other persons actively involved in public life should display a greater degree of tolerance for criticism against them (see, mutatis mutandis, I Avgi Publishing and Press Agency S.A. and Karis v. Greece, no. 15909/06, § 34, 5 June 2008; Seleckis v. Latvia (dec.), no. 41486/04, § 32, 2 March 2010 ). Therefore, in a democratic system the limits of permissible criticism are much wider with regard to newspapers than in relation to a private citizen (see, mutatis mutandis, Ärztekammer für Wien and Dorner v. Austria, no. 8895/10, § 65, 16 February 2016).
51. In assessing the necessity of the interference, it is important to examine the way in which the relevant domestic authorities dealt with the case, and in particular whether they applied standards which were in conformity with the principles embodied in Article 10 of the Convention.
52. In the present case, the domestic courts considered that the applicant ’ s statements on the television programme had included both statements of fact and value judgments, and that his conclusions had been drawn from those facts (see paragraphs 1 5, 2 2 and 2 7 above). They further examined the circumstances of the case and found that the applicant had failed to prove the veracity of his assertions, either at the time they were made or later, in the course of the civil proceedings ( see, paragraph 1 6 above).
53. The Court notes that since the applicant actively and publicly commented on current affairs, his statement was a part of an ongoing debate on matters of public interest and it undoubtedly raised a matter of public concern, that is, the independence of the media in a democratic society. The Court reiterates in this regard that the Convention offers protection to all participants in debates on matters of legitimate public concern (see Braun v. Poland, no. 30162/10, § 47, 4 November 2014 ).
54. As regards the Government ’ s arguments that the applicant adopted a sensationalist tone and used utterly negative language (see paragraph 42 above), the Court observes that while the applicant had recourse to a certain degree of hyperbole in his statements, at the same time it does not seem that he resorted to gratuitously offensive and inappropriate language or went beyond a generally acceptable degree of exaggeration (see Yordanova and Toshev v. Bulgaria, no. 5126/05, § 52, 2 October 2012).
55. The Court is further not called upon to judge whether the applicant relied on sufficiently accurate and consistent information. Nor will it decide whether the nature and degree of the allegations he made were justified by the factual basis on which he relied. That was the task of the domestic courts, which are in principle better placed to assess the factual circumstances of the case. However, when deciding such issues domestic courts should observe the standards of freedom of expression enshrined in the Convention.
56. The Court considers that the applicant was clearly involved in a public debate on an important issue (see Braun, cited above, § 50). Therefore the Court is unable to accept the domestic courts ’ view that the applicant was required to prove the veracity of his allegations. It was not justified, in the light of the Court ’ s case-law and in the circumstances of the case, to require the applicant to fulfil a more demanding standard than that of due diligence.
By following such an approach the domestic courts effectively deprived the applicant of the protection afforded by Article 10.
57. Lastly, the Court reiterates that the nature and severity of the sanction imposed are also factors to be taken into account when assessing the proportionality of the interference under Article 10 of the Convention (see Axel Springer AG v. Germany [GC], no. 39954/08, § 95, 7 February 2012 ). In the instant case the applicant was ordered to arrange for the publication of an apology ( costing PLN 34,897.36, approximately EUR 8,700), and to pay PLN 10,000 (approximately EUR 2,500) to a charity. The Court finds that the publication of an apology entailed considerable costs for the applicant and that the combined total came to about eighteen times the average monthly wage at the material time. In those circumstances, the Court finds that the pecuniary sanctions imposed on the applicant were excessive (see Kwiecień v. Poland, no. 51744/99, § 56, 9 January 2007).
58. Having regard to the foregoing considerations, the Court finds that the domestic courts did not convincingly establish any pressing social need for putting the protection of the rights of Agora S.A., the publisher of Gazeta Wyborcza, above the applicant ’ s right to freedom of expression and the general interest in promoting that freedom where issues of public interest are concerned. The reasons given by the courts cannot be regarded as a sufficient and relevant justification for the interference with the applicant ’ s right to freedom of expression. The national authorities therefore failed to strike a fair balance between the interests in question.
59. It follows that there has been a violation of Article 10 of the Convention.
II. APPLICATION OF ARTICLE 41 OF THE CONVENTION
60. 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 .”
61. The applicant claimed 5 4, 861.98 Polish zlotys (PLN) (approximately 12,450 euros (EUR) ) in respect of pecuniary damage. That sum represented PLN 3, 649 paid by the applicant to the plaintiff in reimbursement of the costs of the proceedings, PLN 1 0,000 paid to a charity, PLN 34,897.36 for the costs of publishing the apology ordered by the domestic courts and PLN 6,315.62 for enforcement proceedings. The applicant further claimed EUR 10,000 in respect of non-pecuniary damage.
62. The Government considered that the claims were excessive and unsubstantiated.
63. The Court finds that in the circumstances of the case there is a causal link between the violation found and the alleged pecuniary damage as the applicant referred to the amount which he had been ordered to pay by the domestic courts (see Braun, cited above, § 55 ). The Court awards the applicant the sum claimed in full, that is, EUR 12,450.
64. As regards the claim for non-pecuniary damage, the Court considers that the finding of a violation of Article 10 of the Convention constitutes in itself sufficient just satisfaction for any non-pecuniary damage sustained by the applicant.
65. The applicant, who was represented by a lawyer in the proceedings before the Court, did not make any claim for costs and expenses.
66. 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.
1. Declares, unanimously, the application admissible;