CASE OF WIZERKANIUK v. POLAND
Violation of Art. 10;Pecuniary and non-pecuniary damage - award
David Thór Björgvinsson;Lech Garlicki;Ledi Bianku;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä
6. The applicant, Mr Jerzy Wizerkaniuk, is a Polish national who was born in 1952 and lives in Kościan. At the material time he was a chief editor and a co-owner of the local newspaper “Gazeta Kościańska”, published in Kościan. 7. On 24 February 2003 two journalists working for the applicant’s newspaper interviewed a local M.P., Mr T. M. The interview, arranged during a chance meeting between one of the journalists and the M.P. several days earlier, at a session of the Kościan Municipal Council, took place in the M.P.’s office in Kościan and lasted about two hours. All questions and answers were tape-recorded. It related to the M.P.’s public and business activities. After the meeting the M.P. requested that the text of the interview be submitted for his authorisation (autoryzacja) before its publication, as provided for by Section 14 of the 1984 Press Act (Prawo Prasowe) (see paragraph 29 below). 8. The verbatim transcript of the interview, subsequently prepared by the two journalists, ran to forty standard pages. The applicant requested P.S., the editing journalist of the newspaper, to prepare an edited version of the interview, fit for the publication purposes. That version ran to three standard pages. The latter version was subsequently presented to the interviewee, approximately a month after the conversation. He read it and informed an employee of his office, Mr K. P., that he would not give his consent to the publication of the text. He was of the view that the text did not correspond to the conversation he had had with the two journalists and that many important statements he had made were not included. He asked Mr K.P. to inform the applicant of his refusal. Shortly afterwards, the applicant called the M.P. who reiterated his refusal. 9. In an undated letter to the applicant, served on him on 5 May 2003, the M.P. stated: “It is true that in February I talked to two representatives of “Gazeta Kościańska”. During that conversation, which was in any event very informal, I replied to a number of questions. However, the text submitted for my authorisation only after a month, failed to include many of my important statements and to reflect the character and contents of my statements, [a state of affairs] which I cannot accept.” 10. On 29 April 2003 the newspaper published a short text asking the readers whether they would be interested in having an interview with Mr T.M., the local M.P., published. 11. On 7 May 2003 parts of the verbatim records of the interview, edited by P.S. and accompanied by photos made when the interview was conducted, were published by “Gazeta Kościańska”. The text carried a lead informing the reader that the M.P. had refused to grant his authorisation for the publication of the interview and that the newspaper was publishing parts of the interview as recorded on the tape, including in its original grammatical form. 12. On 19 May 2003 the M.P. informed the Kościan District Prosecutor that the applicant had committed a criminal offence by publishing parts of the interview without his authorisation and against his will. 13. On the same day criminal proceedings were instituted against the applicant on a charge of publishing an interview with the M.P. in spite of the latter’s refusal to authorise its publication. During the investigation the M.P. submitted that he had talked to the two journalists from the applicant’s newspaper. They had had a casual conversation rather than a formal interview. A month later he had been given the text to be published which, in his view, failed to reflect many of his important assertions. Moreover, he was of the view that the text failed to convey both the character and the substance of his statements. 14. By a judgment of 30 April 2004 the Poznań District Court found the applicant guilty as charged. The court established the facts of the case as summarised above (see paragraphs 7-11 above). It further found that the applicant had published the interview despite the M.P.’s refusal to authorise its publication. This in itself amounted to a criminal offence punishable under section 14 read together with section 49 of the 1984 Press Act (see paragraph 29 below). The court observed that it was possible for the interviewed person to renounce his or her right to grant authorisation for the text to be published, but such a declaration had to be unequivocal. 15. The court noted the submission made by P.S., who was heard as a witness. According to P.S., the newspaper had not published the three-page summary which had initially been submitted for the M.P.’s approval. It had published parts of the interview quoted verbatim. The court found his statement credible. The court further noted that M.P.’s photographs taken during the interview had also been published together with the interview. The applicant had failed to indicate which photographs he intended to publish and to show them to M.P. before the publication. 16. The court further observed that the applicant had failed to comply with his obligation, under the Press Act, to obtain the authorisation of the interviewed person. It was of the view that the fact that the interview had been published without the required authorisation breached the interviewee’s personal rights. The applicant had acted with intent to break the law, but he had been motivated by his wish to fulfil his journalistic duties by making the interview available to the public. Having regard to the latter factor, the court concluded that the offence concerned could not be regarded as serious. Consequently, and having regard also to the fact that it was not open to any doubt that the applicant was a law-abiding citizen and that his conduct had always been irreproachable, the court conditionally discontinued the proceedings, obliged the applicant to pay 1,000 zlotys (PLN) to a charity and ordered him to bear the costs of the proceedings. 17. By a judgment of the Poznań Regional Court of 6 October 2004, served on the applicant on 15 November 2004, the first-instance judgment was upheld. The court noted, inter alia, that the photographs taken during the interview constituted its inherent part. The applicant, by publishing them without the interviewee’s consent, had breached his personal rights within the meaning of Article 23 of the Civil Code. 18. The applicant subsequently lodged a constitutional complaint with the Constitutional Court, challenging the compatibility with the Constitution of section 14 in conjunction with section 49 of the Press Act 1984, in so far as they provided for a fine or for restriction of liberty to be imposed on a journalist or publisher for failing to ask an interviewee for his or her authorisation. He relied on Article 54, guaranteeing the right to freedom of expression, and Article 31 of the Constitution, providing for the principle of proportionality in respect of restrictions on constitutional rights. 19. In the ensuing constitutional proceedings the Constitutional Court sought the opinions of the Ombudsman (Rzecznik Praw Obywatelskich), the Prosecutor General (Prokurator Generalny) and the Speaker of the Parliament (Marszałek Sejmu). In their opinions submitted to that court they concluded that section 49, read together with section 14 of the Press Act, was incompatible with the constitutional guarantees of freedom of expression. They were of the view, in particular, that the restriction on the exercise of that right by imposition of a criminal penalty was incompatible with Article 31 of the Constitution, which enshrined the principle of proportionality in respect of restrictions imposed on the exercise of civil rights and freedoms (see paragraph 27 below). They further referred to the existing civil law instruments available for the purposes of effective protection of personal rights (see paragraphs 30-32 below). 20. The Constitutional Court gave a judgment on the merits of his constitutional complaint on 29 September 2008. It held that the contested provisions of the Press Act were compatible with Article 54 of the Constitution read together with its Article 31. 21. The court noted that it was proposed in a public debate to do away with the obligation to seek and obtain the authorisation provided for by the Press Act. However, the opinions pointing to the potential danger of such a legislative measure could not be overlooked. The Constitutional Court was of the view that abrogating the authorisation requirement would, on the one hand, expose persons interviewed by the press to the risk of having their personal rights breached by having their words distorted and, on the other, be dangerous for the exercise of the freedom of expression. The essence of the authorisation was not only to ensure that statements made by interviewees were rendered literally, but also to protect the integrality of such statements. This, in turn, ensured that the intentions of the speaker were faithfully conveyed. Therefore, the applicant’s argument that the authorisation requirement gave the interviewee an opportunity to block the publication of a statement indefinitely was incorrect. 22. The judgment further read: “Freedom of expression constitutes one of the essential foundations of a democratic society and one of the basic conditions for its progress and for each individual’s self-fulfilment. It is applicable not only to “information” or “ideas” that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb. The press has a duty to impart – in a manner consistent with its obligations and responsibilities – information and ideas on all matters of public interest. This duty is closely intertwined with the right of the public to receive information. (...) Statements made public by the media could, as they have a great power of persuasion, lead to the infringement of the personal rights of the individuals concerned. In certain cases the post factum remedies available under law are insufficient to provide effective redress for such infringements, and in some cases the damage could indeed be irreparable. However, a publicly made statement not only could be an instrument of an infringement, but could also be unlawfully distorted. This was why the legislature decided to grant additional protection to statements made in the context of interviews by creating the authorisation requirement. Assuming that this requirement amounted to a restriction on freedom of expression as it obliged journalists to obtain authorisation from the author of literally quoted statements, its necessity in a democratic society has to be examined. [The] freedom of expression is not ius infinitum and could therefore be limited. However, it is necessary that restrictions on its exercise are compatible with the principle of proportionality set out in Article 31 of the Constitution. This provision allows for restrictions imposed on individual rights only when they have statutory legal basis and are necessary in a democratic state in the interests of national security or public safety, for the protection of environment, health or morals, for the protection of rights of others. These restrictions cannot not impair the essence of rights and freedoms. (...) Article 47 of the Constitution provides for everyone’s right to the legal protection of one’s private and family life, of one’s honour and good reputation, and for the right to decide about one’s personal life. No restrictions can be imposed on the exercise of these rights (...). On the contrary, the freedom of expression can be restricted. The obligation to obtain the interviewee’s consent amounted to a restriction. However, such restriction cannot be seen as impairing the essence of the freedom of expression, because it concerns only statements quoted verbatim in press publications. It does not restrict or limit journalists’ right to inform the public of the content of such a statement by summarising it. When a journalist chooses to summarise or otherwise convey the content of a statement made by the interviewee, he or she is not obliged to seek the interviewee’s authorisation or to inform them of the intended publication. Nor, therefore, does it restrict the right of the public to obtain information. [...] that requirement is also necessary in a democratic society to protect the personal rights of journalists’ sources. Hence, not only it is not in breach of any constitutional right but, on the contrary, it had to be regarded as a guarantee of the effective exercise of constitutional rights. Furthermore, this requirement is justified not only by the necessity to protect individual rights [...] but it derives its legal foundation from other elements which, taken together, formed the constitutional notion of the public interest. As the authorisation serves to establish with full clarity the authorship of a given statement made public, it contributes to the clarity and transparency of public debate. It makes it possible for the reader to be certain that the speaker identifies himself with the statement’s content and would not try to change it or to distance himself from it. It is therefore in the reader’s interest to maintain it. Without this requirement, readers could not be sure whether statements purportedly made in the context of interviews are really authentic. In the Constitutional Court’s opinion the authorisation requirement was therefore a means of guaranteeing the reader’s right to obtain reliable, credible, truthful, honest, clear, not misleading and responsible information. This right has not been expressly guaranteed by the Constitution, but it was anchored in it. [...]” 23. In so far as the criminal sanction for failure to obtain the authorisation was concerned, the Constitutional Court observed that it aimed at ensuring that the citizen’s right to reliable information was respected. Authorisation was the simplest way to ensure the veracity of the message, whereas statements published without authorisation could be distorted, which was clearly undesirable. 24. The Constitutional Court referred to the legal provisions penalising defamation. It was of the view that while the offence of defamation was directed against an individual’s reputation, in the same way the offence penalised by section 14 read together with section 49 of the Press Act was aimed at obtaining compliance with the obligation to quote and report statements made by interviewees in a fair and accurate manner, in order to protect their personal rights. The penal sanction provided for by these provisions thus respected the principle of proportionality. 25. A dissenting opinion of Justice Rzepliński was attached to that judgment. He had regard, firstly, to considerations which could be said to have constituted the ratio legis of the Press Act when it had been adopted in 1984. He noted that the 1952 Constitution, in force at that time, guaranteed neither the right to freedom of expression nor the right to respect for family and private life in any form comparable to the current constitutional regulations. At that time all media had been subject to preventive censorship and it was ultimately the State which decided what could be published or broadcast. The opinion further read, inter alia: “The provisions of the Press Act regarding the authorisation requirement were only, at that time, an additional safeguard against the press publishing any information given to journalists by the communist party or State agents if such information was capable of jeopardising the interests of then political power. [Given that constitutional background, it is only natural that] the Press Act did not provide for any distinction in respect of the authorisation requirement between the persons exercising public functions and all other persons. Thus, that Act provided for identical protection, by way of the criminal law, of persons holding public offices who were, for that reason, obliged to provide information about their acts to journalists, playing the role of “watchdogs” of the public powers on behalf of public opinion, and all other, “private”, persons. (...) Moreover, the Press Act failed to indicate any time-limit within which a journalist could reasonably expect that authorisation would be granted or refused. (...) While it is true that during the last years of the ancien régime, in 1998/89, State censorship became less strict, the origin of the examined provisions of the Press Act and the place they had in the legal order at that time cannot be ignored.” 26. Justice Rzepliński further disagreed with the Constitutional Court in so far as it had held that the restrictions imposed by the impugned provisions satisfied the test of proportionality, enshrined in Article 31 of the Constitution. In this context, he stated that the freedom of speech standards developed by the European Court of Human Rights in its judgments could not be overlooked. The dissenting opinion further read: “The impugned provisions [seen in this light] amounted to an unnecessary and excessive interference with the freedom of the press in the interest of the personal rights of persons providing information to the press. These provisions were not necessary for that purpose at the time they were adopted and are still less necessary in a democratic State governed by the rule of law. Authorisation to publish information quoted verbatim is unknown to the legal systems of other States of the European Union. (...) The authorisation requirement amounts to censorship which makes it impossible for the reader to know the original statement made by the interviewee. It may dissuade journalist who is wishing to obtain an interview for their newspaper with a politician important in a national or local context from asking uncomfortable, searching questions. (...) In a democratic state a politician, a public person, has no right to manipulate his or her statements post factum. If he or she resorts to such manipulation, the public opinion is entitled to know this because it is an important element relevant for public image of a politician if he or she tampers with his or her public statements. The requirement of authorisation makes it impossible for the public to acquire such knowledge. Citizens expect politicians to have the courage to make wise decisions in difficult situations. If a politician is unsure of the choice of words to be used when speaking in a public situation it might be a signal to the public that he or she is unable to cope with stressful circumstances. It is something that public opinion is entitled to know. (...) I do not share the view expressed by the Constitutional Court in the present case that a journalist, when refused authorisation to publish a verbatim quotation, can resort to paraphrasing the statements concerned; that the Press Act therefore does not in any way restrict the journalist’s right to convey the interviewee’s thoughts and the right to inform the public thereof (...). I am of the view that public opinion always has a right to be informed of the interviewee’s statements quoted verbatim always where a journalist deems it necessary to convey information which is interesting for readers. I am also of the opinion that that descriptive technique is manipulative and makes it possible for both a journalist and an interviewee to shirk responsibility for the words they use. Furthermore, the fact that the impugned provisions of the Press Act make it possible to use such “techniques” and “evasions” demonstrates that they do not meet the standards required of a fair-minded legislator. (...) There is no right in the Constitution or in a democratic society to “true” or “right” information. A journalist is not obliged to provide such information; if only because he or she does not exercise public powers. His or her professional duty is to seek and disseminate information, views and judgments. Only persons receiving information, readers, listeners, TV watchers or internet users are to decide whether information is true or not. (...) The authorisation requirement is not, as such, wrong. A journalist, when talking to experts, may have, at the editing stage, some doubts whether he or she has properly understood what they said, even where the interview was recorded. In practice, in such situations journalists themselves request the persons interviewed to read the text and to correct or supplement it. A journalist is well aware that errors he committed in gathering specialist information could jeopardise his position on the market. What then is a sword of a criminal sanction needed for? (...) The mere fact that section 49 of the Press Act has practically never been applied recently by the courts (...) does not mean that it does not play in the Polish legal system a negative role, with a chilling effect on public debate. No one challenges the constitutionality of the provisions of civil law applied by the courts in the context of disagreements arising out of press publications.” 27. Article 54 of the Constitution provides: “1. Freedom to express opinions, and to acquire and disseminate information shall be ensured to everyone. 2. Preventive censorship of means of social communication and licensing of the press shall be prohibited.” Article 31 of the Constitution reads: “Freedom of the person shall receive legal protection. Everyone shall respect the freedoms and rights of others. No one shall be compelled to do that which is not required by law. Any limitation upon the exercise of constitutional freedoms and rights may be imposed only by statute, and only when necessary in a democratic state for the protection of its security or public order, or to protect the natural environment, health or public morals, or the freedoms and rights of other persons. Such limitations shall not violate the essence of freedoms and rights.” 28. Article 61 of the Constitution provides that a citizen shall have the right to obtain information on the activities of organs of public authority as well as those of persons discharging public functions. 29. Section 14 of the Press Act 1984 reads: “1. Publication or dissemination in another manner of information that has been preserved by way of phonic or visual recording requires the consent of the persons providing the information. 2. It is obligatory for a journalist to submit the text of a statement cited verbatim, if it has not been published previously, for authorisation by the person providing the information.” Section 49 of the Press Act provides: “Anybody who infringes the provisions of Articles 3, 11 paragraph 2, Articles 14, 15 paragraph 2 and Article 27 – shall be subject to a fine or the penalty of limitation of liberty.” Under section 31 of that Act an editor-in-chief of a newspaper is obliged to publish a disclaimer to rectify false information, or a matteroffact reply to an article, if the requesting person considers that that article has breached his or her personal rights. Various provisions of the Press Act adopted in 1984 were subsequently amended by Parliament (Sejm) on twelve occasions. Neither section 14 nor 49 have been amended. 30. Article 23 of the Civil Code contains a non-exhaustive list of the rights known as “personal rights” (dobra osobiste). This provision states: “The personal rights of an individual, such as, in particular, 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 the civil law regardless of the protection laid down in other legal provisions.” 31. Article 24 of the Civil Code provides for ways of redressing infringements of personal rights. According to that provision, a person facing the danger 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 claim just satisfaction from him/her. If an infringement of a personal right causes financial loss, the person concerned may seek damages. 32. 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 an adequate sum as pecuniary compensation for non-material damage (krzywda) suffered to anyone whose personal rights have been infringed. Alternatively, the person concerned, regardless of seeking any other relief that may be necessary for removing the consequences of the infringement sustained, may ask the court to award an adequate sum for the benefit of a specific public interest ...” 33. Under Article 66 §§ 1 and 2 of the Criminal Code of 1997, criminal proceedings may be conditionally discontinued if the seriousness of the offence, punishable by a prison sentence of less than three years, is not significant, the circumstances in which it was committed have been established beyond reasonable doubt, the perpetrator does not have a criminal record and his personal circumstances and qualities suggest that he will abide by the law during the probation period. 34. Under Article 68 §§ 2 and 3 of the Code, when deciding to discontinue the proceedings for the period of probation, lasting from one to two years from the date on which the judgment becomes final, the court can impose certain obligations on the accused: to pay appropriate compensation to the victim of the offence, to apologise to him/her, or to carry out certain work in the public interest. 35. Under Article 67 § 1 of the Code, the court can fix a probation period of between one and two years, running from the date on which the judgment became final. Criminal proceedings may be resumed if during the probation period the offender disregards the obligations imposed by the court, acts in flagrant breach of public order, or, in particular, commits a new criminal offence.