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18.09.2017

Polish 'sex scandal' case leads to important court ruling

By Emil Weber

A recent precedent of the The European Court of Human Rights (ECtHR) makes a distinction between journalists’ responsibility for defamation in claims made in published interviews and claims made in full journalism stories.

Gazeta Wyborcza The offices of "Gazeta Wyborcza" in Wroclaw (photo: Jane Whyatt/ECPMF)

The court judgement concerning journalist Marcin Kącki’s interview in the context of a “sex-scandal” in Poland establishes stricter criteria for restricting freedom of speech in the cases of interviews in democratic societies.

Mr. Kącki published the interview with a political party activist in the daily 'Gazeta Wyborcza', in December 2006. At the time the party was represented in the national government and in the European Parliament, and the so-called sex scandal 'in the course of exercising public functions' was a current topic in the wider Polish press.

The activist said she had been asked for sex in order to receive payment for working for the party and for promotion to a paid position in the office of a member of the European Parliament. She mentioned three public figures, claiming one of them had promised her the job at the MEP’s office.

At some point during the interview, the activist said the position at the MEP’s office eventually went to the daughter of the MEP. The interview did not say the MEP had asked for sexual favours.

'Sex scandal' and nepotism

The journalist, Mr. Kącki, contacted the three people whos names were mentioned in the interview in relation to the sex claims. They all denied them. However, the European MP was not contacted. The activist who gave the interview saw the written version of her interview and agreed to its publication.

The European MP lodged a private bill of indictment in late 2007 against Mr. Kącki for defamation by involving him in the “sex scandal” and for defaming him through allegations of nepotism. In 2010 the domestic court found Mr. Kącki guilty of defamation for the nepotism claims because the MEP had no daughter. It charged him with a probationary term and 232 Euros. Although the probation was discontinued, the criminal charge figured in Mr. Kącki’s record. The domestic court found that Mr. Kącki 'neglected his professional obligations' by not verifying the claim about the daughter and did not accept his argument that the activist who was interviewed had seen the text before publication and confirmed it without objections.

However, the Fourth Section of ECtHR unanimously ruled on 4 July 2017 that there had been a violation of Article 10 and ordered the Polish government to pay 5,000 euros in non-pecuniary damages to Mr. Kącki plus the costs of the proceedings. The court said that the interview fell within the frame of the public debate. It made a crucial difference between interviews and full journalistic articles.

The difference between an interview and a general article"

“In applying the standards of journalistic diligence it is necessary to consider the nature of the publications. In particular, differences between papers written by journalists and interviews have to be taken into account. The Court attaches importance to the fact that the material published by the applicant was an interview and not a general article”, read the ECtHR judgment. “In the Court’s view a journalist cannot always be reasonably expected to check all the information provided in an interview”.

The court noted the fact that the text was sent to the activist who had been interviewed before publication to check for correct citation and “possibly, to make corrections”. It mentioned that the MEP did not ask for a correction in the newspaper.  And it said that the journalist was not reasonably expected to contact the MEP for comment, as he had done with the three other people whose names were mentioned, because the interview did not focus on the MEP in the context of the 'sex-scandal'.

The ECtHR found the domestic criminal charge against Mr. Kącki disproportionate since it “failed to strike a fair balance between the relevant interests of, on the one hand, the protection of the politician’s right to maintenance of reputation and, on the other, a journalist’s right to freedom of expression”.  

Kącki vs. Poland, application no. 10947/11. 4 July 2017





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