Full case report
Stankiewicz v Poland
Reference  ECHR 1061
Court ECHR (Fourth Section)
Judge Ineta Ziemele, President, Päivi Hirvelä, George Nicolaou, Ledi Bianku, Nona Tsotsoria, Zdravka Kalaydjieva, Krzysztof Wojtyczek
Date of Judgment 14 Oct 2014
ECHR – Article 10 – responsible journalism – reasonable belief
The first and second applicants, Mr Andrzej Stankiewicz and Malgorzata Solecka, were journalists, the third applicant, Presspublica sp. z o. o. was the publisher of daily newspaper Rzeczpospolita where the first and second applicants worked (collectively “the As”).
Following an approach from the chief executive of a large pharmaceutical company with information that the company had received a proposal to “arrange” the placement of its drug on the government list of refunded drugs in exchange for a bribe, the As published a story on the topic. This ran on the front and fourth pages of Rzeczpospolita under the headline “Drugs for millions of dollars” and the standfirst “A pharmaceutical company asserts that the Head of the Private Office of the Minister of Health demanded a large bribe”.
The story concerned WD, Head of the Private of Office of the minister for Health, who was said, in 2002, to have demanded a bribe from pharmaceutical company representatives, offering in return assistance in having one of the company’s drugs placed on the list of drugs refunded within the national health care scheme. This was alleged to have take place during the course of two meetings between companies which planned to set up a network of osteoporosis clinics in Poland at which WD was present.
The journalists sought comment from WD before publication, and put questions to him about his presence as a high-ranking State official at a business meeting between two companies. They included critical comments made by the Deputy Minister of Health responsible for drugs policy at the relevant time. And the article also carried a report on WD’s career entitled “Doctor, businessman, official”.
WD sued the As for infringement of his personal rights in the Warsaw Regional Court. He sought damages, to be paid to charity, on the basis that the information about the request for a bribe had been misleading and untrue, the allegations being based on unverified information originating from the pharmaceutical company. The As argued that the version of events in the article was credible, that they had observed due diligence in gathering the information, and that the article had been justified in the public interest. The court heard witnesses, including participants at the meeting. WD’s claim was dismissed.
As well as making detailed findings of fact about the circumstances of the meeting, the Regional Court held that the article had dealt with issues of public interest and that, while it had infringed WD’s personal rights, it had not been unlawful because the journalists had shown sufficient diligence in gathering and publishing the information and had acted in accordance with professional ethics. It held that the information the As had had at their disposal had been sufficiently reliable to justify the allegation.
WD appealed successfully to the Warsaw Court of Appeal. It focused on whether or not the journalists had respected the special diligence required of them under the Press Act in order to rebut the presumption of unlawfulness of the infringement of WD’s personal rights. It held that they had failed to observe this, and that the first-instance court had erroneously assessed the testimonies of certain witnesses. According to the Court of Appeal, the As’ conduct had been unlawful. They were ordered to publish an apology, and to pay court fees and costs.
The As lodged an appeal which was dismissed by the Supreme Court.
Following the publication of the article, the Warsaw Appellate Prosecutor Office opened an investigation in the case and went on to charge WD with bribery and procurement fraud. These proceedings were discontinued in 2007 for lack of evidence.
Was the judgment against the As in breach of their Article 10 rights in the sense that it was not “necessary in a democratic society”?
Giving judgment for the As, holding that there had been a violation of Article 10:
(1) The nature of the exemption from the ordinary requirement of verification of defamatory statements of fact is such that the domestic courts have to take into account the particular circumstances of the case under consideration. An overly rigorous approach to the assessment of journalists’ professional conduct could unduly deter them from their function of keeping the public informed. The courts must take into account the impact of their rulings not only on individual cases, but on the media generally.
(2) The press’s vital “public watchdog” role was of particular importance in the present case. The article concerned issues of public interest. WD held the position of Head of the Private Office of the Minister of Health and the limits of acceptable criticism are wider with regard to a person holding public office than to a private individual.
(3) Where a statement of fact is made and insufficient evidence is adduced to prove it, and the journalist is discussing an issue of public interest, verifying the journalist’s professionalism and good faith is paramount. In focusing on the As’ failure to speak to one particular participant in the meeting the Court of Appeal did not pay regard to other aspects of the journalists’ professionalism and the overall context in which the business meetings took place. They verified the story meticulously in contacting several of its major protagonists.
(4) The journalists’ reasonable reliance on the information fell to be determined in light of the situation at the time, rather than with the benefit of hindsight. The allegations raised in the article led to a criminal investigation which lasted for more than three and half years.
(5) The As complied with the tenets of responsible journalism. Their research was in good faith and complied with the journalistic obligation to verify facts from reliable sources. The allegations were underpinned by a sufficient factual basis, and the article’s content and tone were balanced. The As gave as objective a picture as possible of WD having approached a number of sources, and offered to present his version and to comment on the allegations raised. WD’s version of events was present in the Article.
(6) The domestic courts failed to take into account the status of WD and the wider limits of permissible criticism applicable to politicians or public officials. They omitted to consider that the allegations of corruption had emanated from the pharmaceutical company and had been reported as such. They also appear to have been unconcerned by the fact that a government official took part in negotiations between private companies on their joint business venture. They did not appreciate that the subject-matter of the publication concerned issues of public interest, or the role of the press as “public watchdog”. They did not carry out a balancing exercise between the right to reputation and the right to impart information. The reasons relied on by the State to justify the interference with the As’ right to freedom of expression were not sufficient to show that the interference was “necessary in a democratic society”.
With this decision the ECHR underlines the protection which is to be accorded to responsible journalism in the public interest, particularly where politicians and public officials are concerned. In the close attention paid to the public interest in the publication of the information, and to the circumstances surrounding it, including the state of mind of the journalists at the time of publication, the Court takes an approach which may parallel the standards which the English courts will apply under s4 of the Defamation Act 2013.
It is also noteworthy that the Court emphasised that national courts should take into account the broader effect of their rulings on the media generally where they assess journalists’ professional conduct. In this jurisdiction, this will be welcome in an atmosphere in which this conduct is increasingly coming under the spotlight.
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