CASE OF ZYBERTOWICZ v. POLAND (No. 2)
No violation of Article 10 - Freedom of expression -{General} (Article 10-1 - Freedom of expression)
András Sajó;Egidijus Kūris;Iulia Motoc;Krzysztof Wojtyczek;Paulo Pinto De Albuquerque;Vincent A. De Gaetano;Gabriele Kucsko-Stadlmayer
5. The applicant was born in 1954 and lives in Toruń. 6. The applicant is a publicist and a professor of sociology. 7. On 11 January 2008 Rzeczpospolita, a national daily newspaper, published an article titled “Zybertowicz – so far 2:0 to the Third Polish Republic” (Zybertowicz: na razie 2:0 dla III RP). The article contained information about three civil lawsuits against the applicant instituted by A.M., the editor-in-chief of one of the biggest daily newspapers, Gazeta Wyborcza, and a certain M.S and Z.S. The article also included a comment by the applicant on the lawsuits in question: “In a way it is quite interesting [to note] who has lodged [civil] claims against me so far: two agents and one their fierce defender” (“Swoją drogą to ciekawe, kto mnie dotychczas pozwał do sądu: dwóch agentów i jeden ich zaciekły obrońca”)” 8. On 19 March 2008, A.M. brought a civil action in the Warsaw Regional Court (Sąd Okręgowy) requesting legal protection of his personal rights. He asked that the applicant be ordered to publish an apology and to pay damages of 20,000 Polish zlotys (PLN) (approximately 4,761 euros (EUR)) to a charity. 9. On 1 April 2008 the Warsaw Regional Court transferred the case to the Toruń Regional Court. 10. On 20 August 2008 the Warsaw Court of Appeal (Sąd Apelacyjny) quashed this decision. 11. On 9 June 2009 the Warsaw Regional Court gave judgment and partly allowed the plaintiff’s claim. It ordered the applicant to publish an apology on the first, second or third page of Rzeczpospolita. It further determined the exact size and wording of the apology. The court also ordered the applicant to pay PLN 1,000 (approximately EUR 238) to a charity and PLN 1,025 (approximately EUR 244) in court fees. 12. During the proceedings the court questioned the applicant and the plaintiff. The applicant argued that the phrase in question had represented his opinion about A.M.’s public statements. Referring to several published statements and excerpts from articles written by A.M., the applicant claimed that he had had a good factual basis for giving this opinion of A.M.’s views about lustration. 13. The court also obtained an opinion from an expert on linguistics. The expert was asked in particular to reply to the question of whether the phrase “two agents and one their fierce defender”, in the context of the case, constituted a statement of fact or an opinion. In his opinion of 6 May 2009 the expert stated that the phrase in question had been a statement of fact and not a hypothesis or supposition. In addition, taking into account the readers’ presumed general knowledge it was obvious that A.M. had been identified in the article as having defended two agents. The plaintiff submitted to the court a second expert report (dated 2 January 2009), in which another expert on language analysis confirmed that the applicant’s statement had been a statement of fact. 14. The Warsaw Regional Court noted that the applicant, when formulating the statement in question, referred in particular to a number of published statements made by A.M. in which he had criticised the lustration law. The applicant also relied on an earlier Warsaw Court of Appeal judgment confirming that Z.S. had indeed collaborated under communism with the Security Service. 15. The court further held that everyone, including those not following the news carefully, was aware that M.S. and Z.S. had been accused of collaborating with the Security Service. In particular, readers of Rzeczpospolita should have been aware of that fact as the newspaper had published numerous articles on the issue. 16. The Warsaw Regional Court also held that, judging by both the applicant’s statement and the whole article, it did not appear that A.M. had been an “agent”. While the applicant in his statement had not specified who in his opinion had been “an agent” and who “their fierce defender”, from the nature of the publication and taking into account the readers’ general knowledge it was clear that it was the plaintiff who was considered to be “the fierce defender of two agents”. At the same time, the court accepted that had the applicant used a more general formulation and referred only to A.M.’s attitude towards the lustration law such words could have fallen within the limits of acceptable criticism and it would not have been necessary to protect A.M.’s personal rights. 17. Lastly, the court considered that from the published statements and quotes from A.M.’s public statements which the applicant had submitted during the proceedings it did not appear that A.M. had ever actually defended those two particular persons. 18. In conclusion, the court held that A.M.’s personal rights had been breached, but only partially. For this reason the court considered that the plaintiff’s claim had been exaggerated; therefore, it lowered the sum to be paid to the charity. 19. Both parties appealed. 20. On 11 March 2010 the Warsaw Court of Appeal modified the firstinstance judgment and ordered the applicant to pay PLN 10,000 (approximately, EUR 2,380) to the charity and PLN 2,845 (approximately EUR 677) in court fees. The applicant was also ordered to publish an apology in Rzeczpospolita. 21. The court in principle agreed with the reasoning presented by the Regional Court. It held that while the phrase “fierce defender of two agents” had breached A.M.’s personal rights, it was not defamatory. The court further agreed with the Regional Court that the applicant had named A.M. as having defended two particular persons. However, he had failed to prove that his statement had been true. Consequently, the court considered that the phrase used by the applicant had breached the plaintiff’s personal rights (in particular his good name) and had conflicted with the values espoused by him. 22. The court referred to the ongoing public debate in Poland about the necessity of lustration in order to explain and disclose the role of various special services after the World War II. It noted that in the context of that debate the phrase that someone was “a fierce defender of ... agents” suggested that that person had defended them, justified their actions and searched for a way to absolve them from any responsibility in the eyes of the public. Consequently, attributing to someone the role of “fierce defender of ... agents” was a breach of that person’s good name and suggested that that person’s behaviour had been contrary to the public good. 23. The court also held that the phrase in question had been a statement of fact. However, it considered that there had been no basis for concluding that A.M. had defended any agents, or more generally, defended activities of the communist secret services that had been harmful to the public. On the contrary, he had firmly condemned such activities. He had objected to lustration being understood as a tool to destroy people and being used as an argument in political games. 24. With reference to the sum to be paid to the charity the court noted that the applicant was a highly educated university professor holding numerous public offices. A person in the applicant’s situation should have been aware of how his statement would have been understood by an average reader of Rzeczpospolita and whether there was any basis for attributing to someone the role of “[fierce] defender” of ... agents. The court further held that the sum of PLN 1,000 to be paid to charity was symbolic and that PLN 10,000 was a more appropriate sum, given – especially considering that it was not an excessive burden for the applicant. 25. The applicant lodged a cassation appeal. In particular, he referred to Article 10 of the Convention. 26. On 24 March 2011 the Supreme Court (Sąd Najwyższy) refused to entertain the applicant’s cassation appeal on account of the lack of important legal issues to be considered in the case. The court, relying on Article 10 of the Convention, noted that freedom of expression did not have an absolute character. It further referred to its own case-law, according to which the necessity to prove that a statement of fact was true was not an excessive requirement and did not infringe the freedom of political debate. 27. On 19 April 2010 A.M.’s representative instituted enforcement proceedings in the Warsaw District Court aimed at compelling the applicant to comply with the obligations imposed by the Warsaw Court of Appeal’s judgment of 11 March 2010. 28. On 15 June 2010 the Warsaw District Court ordered the applicant to publish the apology ordered by the Warsaw Court of Appeal in Rzeczpospolita. After the applicant failed to comply with that order, on 10 June 2011 the Warsaw District Court allowed A.M. to publish the apology in Rzeczpospolita in the applicant’s name and ordered him to cover the fee for its publication in the amount of PLN 23,124 (approximately EUR 5,505). The applicant received a significant discount on that fee.