CASE OF KURSKI v. POLAND
Violation of Article 10 - Freedom of expression -{General} (Article 10-1 - Freedom of expression)
András Sajó;Egidijus Kūris;Iulia Motoc;Krzysztof Wojtyczek;Marko Bošnjak;Paulo Pinto De Albuquerque;Gabriele Kucsko-Stadlmayer
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 TVP2 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 firstinstance 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 2001VIII), 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).