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14.10.2016

CoE: Polish courts violated Article 10 in defamation lawsuit against a politician

by Tobias Raab
In its judgement of 14 July 2016, the European Court of Human Rights’ Fourth Section decided that ordering a politician to publish an apology for defaming a Polish newspaper violated Article 10 of the Convention (Application no. 26115/10).

In the case, Jacek Kurski took part in a live television debate. Kurski had been a Polish MP and then became a member of the Law and Justice party. During a TV show, he claimed that the newspaper Gazeta Wyborcza had “an agreement with an oil company to finance the newspaper’s mass propaganda against Law and Justice.” He stated that the Polish newspaper had “frenzied an attack on Law and Justice” with an article “full of lies” and other articles which he called “just obsessive propaganda”. The publisher of the paper then sued Kurski. He argued that the politician damaged the newspaper’s reputation (under article 23 of the Polish civil code), and wanted an apology and payment to charity.

After a Warsaw regional court upheld the newspaper’s claim, deciding that Kurski had implied that there was some kind of media or business agreement between the newspaper and an oil company according to which the oil company financed via advertisements the publication articles against Law and Justice. The Court also found that such an accusation was a clear offense to the publisher. The Court therefore ordered Kurski to pay 3.100 EUR (2500 EUR to a charity and 600 € in costs) and to apologise in the newspaper and on TV. After the politician filed an appeal, Poland’s Supreme Court decided in favour of the newspaper and rejected Kurski’s appeal. The Court found that the plaintiff’s accusations were a “statement of fact” which he did not prove, rather than just a simple opinion, and kept Kurski ordered to the payment and the apology. After he refused to comply with that order, a District Court in Warsaw allowed the newspaper to publish an apologizing statement in his name and ordered him to pay 8700 € in costs. Following this decision, Kurski lodged an appeal to the European Court of Human Rights, claiming a violation of his right to freedom of expression under Article 10 of the Convention.

Even though, the Court admitted that the accusations, which Kurski had made in the TV debate, had been quite serious, the judges stressed that they were made against a newspaper that had actively been part of a public debate. The Court explained that the limits of permissible criticism are much wider with regard to newspapers than in relation to a private citizen, as journalists and publicists, as other persons actively involved in public life, had to display a greater degree of tolerance for criticism against them. Even as Kurski’s statements had included statements of fact as well as value judgments and he had failed to prove the veracity of his accusations, the Court stated that it would not decide whether the plaintiff relied on sufficiently accurate and consistent information. Nor would it decide whether the nature and degree of the allegations he made were justified by the factual basis on which he relied. The Court made clear that this had to be done by a domestic court. Nonetheless, domestic courts should observe the standards of freedom of expression contained in the Convention when deciding such issues. As the Court found Kurski to be clearly involved in a public debate on an important issue, it held itself to be unable to accept the domestic courts’ view that the applicant was required to prove the veracity of his allegations. The judges said that it was not justified, in the light of the Court’s case-law and in the circumstances of the case, to require the applicant to fulfil a more demanding standard than that of due diligence, which was why the decision of the domestic court had effectively deprived the plaintiff of the protection afforded by Article 10. The sanctions imposed on the politician were excessive in the eyes of the Court, as a publication of an apology entailed considerable costs for the applicant, as the combined total came to about eighteen times the average Polish monthly wage. The Court stated that the domestic courts had violated Article 10 by failing to keep a reasonable balance between Kurski’s freedom of expression and the publisher’s rights. Kurski therefore had been awarded 12.000 EUR in pecuniary damages.

Tobias Raab is an Attorney at Law and works as freelancer at the Institute of European Media Law (EMR), Saarbrücken/Brussels.

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The decision can be found here.



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