CASE OF KĄCKI v. POLAND
Violation of Article 10 - Freedom of expression-{General} (Article 10-1 - Freedom of expression)
András Sajó;Egidijus Kūris;Iulia Motoc;Krzysztof Wojtyczek;Nona Tsotsoria;Vincent A. De Gaetano;Gabriele Kucsko-Stadlmayer
5. The applicant was born in 1976 and lives in Poznań. 6. On an unspecified date A.R., a member of the political party SelfDefence of the Republic of Poland (“Samoobrona”) sent Gazeta Wyborcza, a daily newspaper, an electronic mail containing information about an alleged “sex scandal” in the party. 7. The following day the applicant, who is a journalist, contacted A.R. on the telephone. After their conversation he informed her that he had recorded the call and that he intended to use the transcript for an article. 8. On 6 December 2006 the applicant published an interview with A.R. in the Gazeta Wyborcza. The interview, entitled “Payment for sex, the choice is yours” (“Płaca ze seks, wybór należy do pani”) concerned the “sex scandal” story which had broken in Poland earlier in 2006. Public figures, including Samoobrona activists, had offered and accepted sexual favours in the course of exercising public functions. A.R. told the newspaper that she had begun working with the party through her contacts with A.K. Initially, she had been unpaid and when she had demanded payment, one of the activists, K.Z., had told her: “I will pay if you go to bed with me” She also said that in July 2004 during a party organised by A.K. a prominent Samoobrona activist, B.S., had offered to find a post for her in a parliamentary deputy’s office – specifically R.C.’s – in return for sexual favours. According to A.R., B.S. was so forward that she had to ask K.S. for help. K.S. then called a taxi to take B.S. home 9. Then the applicant asked A.R.: “Did you get the job?” A.R. replied: “No, the job was given to M.C.’s daughter”. 10. On the same page, to the right of the article, the newspaper quoted three prominent Samoobrona activists referred to in the interview, namely K.Z., B.S. and K.S. They all, denied that there had been any sexual propositions made to A.R. 11. Also on the same page the newspaper published a short interview with A.K. who confirmed that she knew A.R. but had never recommended her for any work. When asked about the “sex scandal” A.K. said: “What are you saying? I have never heard of it. This cannot be true.” 12. On 30 November 2007 M.C., a Member of the European Parliament, lodged a private bill of indictment against the applicant. He demanded that the applicant be charged with defamation. According to the indictment the defamation consisted of the publication of the interview with A.R. in which she said that B.S. could arrange a job for her in M.C.’s office in return for sexual favours. According to M.C. this suggested to readers that he had been involved in the “sex scandal”. He also claimed that he had been defamed in the published interview at the point where A.R. had accused him of nepotism by saying that he had employed his own daughter. 13. On 16 March 2010 the Warsaw District Court ruled the indictment partially accurate: it then discontinued the proceedings for a probationary term of one year and ordered the applicant to pay 1,000 Polish zlotys (PLN – 232 euros (EUR)) to charity and to pay the costs of the proceedings. 14. The District Court found the applicant guilty of the defamation of M.C. with respect to his publication of the statements made by A.R. concerning nepotism (see paragraph 23 below). According to the court the applicant neglected his professional obligations because he did not verify that the job had been offered to M.C.’s daughter. At the trial it became clear that this information could not be accurate because M.C. did not have a daughter. It did not accept the applicant’s argument that he had acted with due diligence because before publication he had sent the text of the interview to A.R. who had accepted its contents and returned it to the applicant without making any objection or comment (autoryzacja). 15. The District Court did not hold that the applicant was guilty of defamation when he had suggested that M.C. had been involved in the “sex scandal”. It found that in this respect the applicant had fulfilled his professional obligations because he had published the statement of B.S., who had denied propositioning A.R. For the above reasons, in the District Court’s view, the average reader should not have had the impression that M.C. was involved in the “sex scandal”. 16. The applicant and M.C.’s lawyer appealed against the firstinstance judgment. 17. On 18 June 2010 the Warsaw Regional Court upheld the challenged judgment, repeating in essence the same reasoning as the District Court. Regarding the applicant’s arguments concerning his right to freedom of expression under Article 10 of the Convention, it noted that “in the light of the journalist’s right to publish critical comments (prawo do krytyki dziennikarskiej), an individual’s right to legal protection of good name and reputation should also be taken into account”. 18. On 3 February 2011 the applicant’s lawyer requested the Ombudsman to lodge a cassation appeal on the applicant’s behalf. 19. On 6 May 2011 the Ombudsman informed the applicant that she had found no grounds to lodge a cassation appeal.