CASE OF KANIA AND KITTEL v. POLAND
No violation of Art. 10
Lech Garlicki;Ledi Bianku;Nicolas Bratza;Päivi Hirvelä;Sverre Erik Jebens;Zdravka Kalaydjieva
5. On 23 August 1997 the daily newspaper Super Express published a number of articles written by the applicants. On the cover page the newspaper published a title, covering nearly half of the page. It read “The Warsaw prosecuting authorities confirm: the Minister took” (“Warszawska prokuratura ustaliła: Minister wziął”), and underneath there was a photograph of a Mitsubishi Pajero with information that the price of the most expensive version was over 100,000 United States dollars (USD) and then a paragraph stating that Minister M.S., who was at that time the head of the National Security Office, had accepted such a car as a gift from the businessman W.W. The paragraph read: Minister M.S., the Head of the National Security Office, received from businessman W.W. a luxury car. The case came to light because the Mitsubishi Pajero, worth over 100,000 USD, was [subsequently] stolen. The head of the Mokotów prosecutor’s office, Z Ż., has confirmed that M.S. had been “using” that car. Minister [M.]S. did not want to talk to us about the car from the businessman.” On the same front page the editor published a note, accompanied by a photograph of M.S.: “Sir, as you have refused to give us an interview about the car which you received from W.W., you are requested, in accordance with the Press Act, to answer the following questions: 1. Why did you accept a gift from W.W. in the form of a luxury car? 2. For how long did you use it? 3. Do you think it is correct for a State agent to accept for use a car owned by a businessman? 4. Were you not afraid that accepting that gift amounted to contracting a debt towards him which you would be obliged to pay back in the future?” On the third page an article signed by both applicants was published, entitled “S. used” (“S. używał”). Its leading paragraph read: “The presidential minister and Head of the National Security Office does not want, at least for the time being, to explain why he has accepted an expensive car from a Polish businessman with a Swedish passport. The article went on: “W.W., a well-to-do businessman with a Swedish passport, is the official owner of a car which was stolen from S. ... He has extensive contacts with politicians. He emphasises his close relationship with the President, Aleksander Kwaśniewski. ... On 4 February the Minister’s driver was driving the car to have it washed. When he stopped at traffic lights at Ursynowska Street in Warsaw, the car door was opened by a masked man who hit the driver in the face with a pistol he was holding and threw him out of the car onto the tarmac. Then he drove away, the tyres screeching. The Warsaw prosecuting office started an investigation. Witnesses have stated that M.S. had used the Mitsubishi – prosecutor Z. Z. has told us: ‘We discontinued the investigation in April as we could not identify the perpetrator.’ When Super Express spoke with him, W.W. lied. He tried to explain that he could not remember events which had taken place several months ago and told us that M. S. had never so much as sat in that car. ‘It was the driver who was my friend. And I did not know that he worked as [M.]S.’s driver’, he said. ‘[M.]S. himself never set foot in that car. ... ‘I don’t remember what the car’s documents stated’, he added, ‘I have no more time to talk’. M.S. told us, via his secretary, that he did not have anything to say about the Mitsubishi.” 6. On 29 September 1997 M.S. brought a civil action in the Warsaw Regional Court requesting legal protection of his personal rights. He requested that the defendants be ordered to cease publishing allegations that the plaintiff had accepted an expensive car as a gift, that the newspaper publish an apology, and that damages of PLN 300.000 be awarded to him, which he undertook to pay to a charity. 7. On 23 February 2001 the Warsaw Regional Court partly allowed the plaintiff’s claim. It ordered the applicants and the editorinchief to publish an apology on the cover page of their newspaper for having published the untrue information that the plaintiff had accepted an expensive gift, which was to be worded as follows: “The editors and authors of the articles entitled “[t]he Minister took” and “[M.]S. remains silent” apologise for publishing the untrue information that he had accepted an expensive car as a gift”. It further determined the exact size of the apology. The court also ordered the applicants to pay, jointly with the newspaper’s publisher and the editor in chief, 10,000 Polish zlotys (PLN) as compensation for the nonpecuniary damage he had suffered. The defendants were also ordered to pay, jointly, PLN 1,600 in court fees. 8. During the proceedings the court questioned the applicants and the plaintiff. The court heard W.W. and D.Z., who had been driving the car on the day of the theft, as witnesses. The court had regard to the case file of the investigation into the theft of the car which had been conducted by the Warsaw-Mokotów District Prosecutor; to an authorisation to use the car from 15 January until 13 March 1997 which W.W. had drawn up for the plaintiff; and to a car insurance policy which he had had taken out in the plaintiff’s name for that period. 9. The court found that W.W. and the plaintiff had planned to go to Austria together for a skiing holiday. As W.W. had had to fly to the US for business purposes shortly before the holiday, it had been agreed that the plaintiff would take his car and drive it to Vienna where they would meet. W.W. had arranged for insurance for the plaintiff and prepared a document to the effect that he was authorised to use the car from 15 January to 15 March 1997. The plaintiff had taken the car from W.W. at the beginning of February. Subsequently, on 4 February 1997, when the plaintiff’s driver had been driving the car to have it washed, he had been attacked at traffic lights and the car had been stolen from him. An investigation concerning the theft was subsequently instituted by the District Prosecutor. 10. The court noted the steps which the applicants had taken when gathering the material for the article. The first applicant had become aware of the theft of the car in February 1997. On 6 February 1997 she had published a short article about it. Later on she had contacted the prosecuting authorities requesting information about the progress of the investigation. She had also contacted the President’s Chancellery, where the plaintiff was working at that time, and requested to be given an interview concerning the theft. She was informed that the plaintiff would not give an interview on that subject. In July 1997 the second applicant had started working on the case. He had interviewed W.W. and D.Z. The court noted that W.W. had given very evasive answers to the questions. 11. Nonetheless, the court was of the view that the available evidence indicated that the car had indeed been given to the plaintiff for use for a limited period of time. There was no indication that the car had been accepted as a gift. The relevant evidence given by the plaintiff, W.W. and D.Z. was fully coherent. 12. The court therefore accepted that there was nothing to suggest that the circumstances in which the plaintiff had come into the possession of the car indicated corruption. The court emphasised that he should not have avoided the journalists as it was his responsibility as a public official to ensure that his acts were transparent. It also noted that the newspaper had published the articles only after he had refused to provide information concerning the car. The court accepted the defendants’ assertion that they had been acting in the general interest and had wished to elucidate the circumstances surrounding the use of the car by the plaintiff. However, this motivation did not exempt them from the legal obligation to respect personal rights. They were obliged to act with diligence when gathering and publishing information. The court accepted that the defendants had complied with this obligation when gathering material and information concerning the use of the car. They had had recourse to all the relevant sources. 13. However, the court could not endorse the defendants’ conduct, having regard, firstly, to the titles of the articles. The title on the cover page, taking up almost half of it, insinuated that the plaintiff had taken a bribe and that the Warsaw prosecuting authorities had conducted an investigation in this regard. The suggestion, obvious to any reader, was not borne out by the facts and was not compatible with the information which the newspaper had received from the prosecuting authorities or from any other source. Secondly, the same suggestion was made in the questions published on the first page. Neither the title nor the questions corresponded to the actual content of the article concerning the car published on the third page. This allegation, which had not been based on any facts, had breached the plaintiff’s personal rights. 14. The court further considered that the amount of damages sought by the plaintiff was clearly excessive. However, as his personal rights had been breached, it considered that an amount of PLN 10,000 was appropriate in the circumstances as it was more than merely symbolic. 15. The applicants appealed. They submitted that the court had wrongly found that the contested articles had suggested that M.S. had accepted a bribe and that the prosecuting authorities had conducted an investigation into the matter. They further argued that the first-instance judgment had breached Articles 54 and 61 of the Constitution and Article 10 of the Convention. They averred that the court had failed to take into consideration the standards set in the Court’s case-law. They referred to the judgments given in the cases of Jersild v. Denmark, 23 September 1994, Series A no. 298, and Prager and Oberschlick v. Austria, 26 April 1995, Series A no. 313. As to the scope of the protection afforded to the private lives of politicians, they invoked the Court’s judgment in the case of Lingens v. Austria, 8 July 1986, Series A no. 103. They were further of the view that the court had erred in finding that they had failed to act with diligence when formulating the title for the article. It had clearly been formulated in a manner compatible with journalistic freedom. 16. On 13 November 2002 the Warsaw Court of Appeal dismissed the appeal. It agreed with the first-instance court that the text published on the cover page, including its title, had clearly suggested that the plaintiff had been suspected of corruption, that the prosecuting authorities had conducted an investigation concerning charges of corruption, and that the charges had proved well-founded. The court’s findings in this respect were correct: this was indeed an impression which any reasonable reader might form, while it was clearly not borne out by the facts as established by the applicants. Likewise, the lower court’s conclusion that the text on the third page did not balance the impact of the text on the front page was correct. 17. The appellate court accepted the applicants’ argument that they had been motivated by the protection of the general interest and by their obligation to inform the public of issues of such interest. It held that they had exercised their freedom of expression protected by Article 10 of the Convention. Under this provision, politicians had to take into account that the limits of acceptable criticism were wider in respect of their acts. However, this freedom was not unlimited; it went hand-in-hand with certain obligations and restrictions. It was for the purpose of the effective protection of such rights that journalists were obliged to act with particular diligence; journalistic freedom could not be seen as conferring on journalists a right to act recklessly or arbitrarily. They had to check the veracity of the information which they intended to publish. 18. In the present case the information on the front page insinuated not only that the plaintiff had accepted the expensive car as a gift from W.W., but also that the plaintiff had been suspected of taking bribes, and that the prosecuting authorities had conducted an investigation into the matter and found that suspicion well-founded. That was not true. The conclusions of the lower court concerning the possible assessment of the information published on the cover page and the text on the third page by the readers were well-founded and logical and had to be upheld. 19. The applicants appealed, essentially reiterating their arguments and indicating that Article 10 of the Convention and the Court’s case-law should be used as the frame of reference for the legal assessment of the case. 20. On 20 February 2004 the Supreme Court dismissed their cassation appeal, essentially sharing the conclusions of the appellate court. In so far as the applicants complained that the appellate court had failed to address their arguments based on the Court’s case-law concerning Article 10 of the Convention, the Supreme Court acknowledged that they were right to emphasise the importance of the right to the freedom of expression in a democratic society as interpreted by the Court. Any restrictions imposed on the exercise of that right had to be closely scrutinised. It referred to the case-law of the Court and reiterated that criticism in respect of politicians and their views and actions was acceptable in the context of a democratic society, even where it took the form of violent attacks, exaggeration or even provocation. However, these principles had always to be applied and fine-tuned in the context of concrete factual circumstances. In the present case, the applicants’ interest the public character of the plaintiff’s function, was fully justified. Their diligence in gathering relevant information was not open to any criticism. It was only at the stage where they wrote and published the articles concerned that they had demonstrated negligence. Nothing in the material which they had gathered justified a conclusion that the plaintiff had received the car as a gift. This insinuation, placed on the first page of the newspaper, had clearly overstepped the limits of acceptable journalistic exaggeration. 21. The Supreme Court further held that the newspaper’s editor-in-chief could not be held responsible as at the time when the articles had been published she had not been carrying out this function, and it dismissed the claim in so far as it had been directed against her. 22. Article 14 of the Constitution, adopted in 1997, provides as follows: “The Republic of Poland shall ensure freedom of the press and other means of social communication.” 23. Article 54 of the Constitution reads: “1. The freedom to express opinions and to acquire and disseminate information shall be secured to everyone. 2. Preventive censorship of the means of social communication and licensing of the press shall be forbidden. Statutes may require that permits be sought and obtained for the operation of a radio or television station.” 24. Article 61 of the Constitution, in so far as relevant, provides: “1. Each citizen shall have the right to obtain information on the activities of organs of public authority as well as persons discharging public functions. Such right shall also include the obtaining of information on the activities of self-governing economic or professional organs, and other persons or organisational units, relating to the field in which they perform the duties of public authorities and manage municipal assets or property of the State Treasury. 2. The right to obtain information shall encompass the right of access to documents and entry to sittings of collective organs of public authority formed by universal suffrage, with the opportunity to make sound and visual recordings. 3. Limitations upon the rights referred to in paragraphs 1 and 2 above may be imposed by statute solely to protect the freedoms and rights of other persons ... public order, security, or important economic interests of the State.” 25. Article 23 of the Civil Code contains a list of the rights referred to as “personal” (dobra osobiste). It reads: “The personal rights of an individual, such as, in particular, the rights concerning 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 by civil law regardless of the protection enshrined in other legal provisions.” 26. Article 24 of the Code provides for ways of redressing infringements of personal rights. A person facing the threat of an infringement may demand that the perpetrator desist from the wrongful activity, unless it is lawful. 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/her. If the infringement of a personal right causes financial loss, damages may be sought before a civil court.