Reference:  ECHR 1189
Judge: Ineta Ziemele, President; Päivi Hirvelä; George Nicolaou; Nona Tsotsoria; Zdravka Kalaydjieva; Krzysztof Wojtyczek; Faris Vehabović
Date of judgment: 4 Nov 2014
Summary: Libel - Article 8 - Article 10 - journalism - public debate - public concern - public interest
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The applicant (A) was a Polish national who was born in 1967 and lived in Wrocław. He was a film director, historian and wrote in the press on current affairs. His status as a journalist was contested by the Polish government.
In a radio debate in 2007, A referred to a well-known professor (P) as being among the informers of the secret political police during the communist era. On the same day he called him an informant on television.
A special commission at Wroclaw University published a statement on P concluding that documents relating to him in the archives had not led it to the unequivocal conclusion that he had been a collaborator with the secret police.
P brought a successful action against A in the Warsaw regional court which, in July 2008, allowed the action and ordered A to pay a fine and to publish an apology for having damaged P’s reputation. The court noted the special commission’s conclusions. It also noted that P had been formally registered as a secret collaborator, but that the file on him could not be found. The court heard A and P and a number of witnesses. A submitted that he had acted in the general interest, taking part in a public debate on matters of importance to society. The court held that it could not be proven that he had intentionally and secretly collaborated with the regime within the meaning of the Polish law.
A’s appeal was dismissed by the Warsaw Court of Appeal. A’s subsequent appeal was dismissed by the Supreme Court, but the obligation to publish an apology was limited to one national daily newspaper and one radio station. The Supreme Court noted in particular that while a journalist reporting on an issue of public interest could not be obliged – under its case-law – to prove the veracity of each statement, A could not be considered a journalist with a socially necessary duty to inform. Further it held that an untrue statement would remain illegal even if all efforts had been made to diligently collect and examine its factual basis.
Was the judgment against A in breach of his Article 10 rights?
Finding that the interference with the applicant’s right to freedom of expression was not necessary in a democratic society:
The court noted that A took part in a radio debate in which he stated that P had been a secret collaborator with the communist regime. The court concluded that on the available evidence, this could not be proven, and A’s statement was therefore considered untrue and had to be considered illegal. The accusation was serious for the claimant and was an attack on his good name, as protected by Article 8. The domestic authorities were faced with balancing the conflicting rights.
The Court noted the Supreme Court’s differentiation between the standards applicable to journalists and those applicable to other participants in the public debate, something which it did without regard to compatibility with Article 10. The Supreme Court had held that the standard of due diligence and good faith should be applied only to journalists fulfilling an important social function. Others were required to meet a higher standard and prove the veracity of their allegations.
A’s status as a journalist was the subject of a dispute with the government and domestic courts, but the Court reiterated that the Convention offers protection to all participants in debates on matters of legitimate public concern. The Court noted that A was a historian, the author of press articles and television programmes, and someone who actively and publicly commented on current affairs. The Supreme Court had failed to address the question of whether he had been engaged in public debate.
A had clearly been involved in a public debate on an important issue and the Court did not therefore accept the domestic courts’ approach to requiring the applicant to prove the veracity of his allegations. It was not justified in the circumstances to require him to fulfil a standard more demanding than that of due diligence only on the ground that the domestic law had not considered him a journalist. A had been deprived of the protection of Article 10 and there had been a violation of the Convention.
This decision emphasises the wide-ranging nature of the protection afforded by Article 10. Since the relevant criterion is whether the speaker is a participant in a debate on matters of legitimate public concern, the net is clearly cast wider than professional journalists, to include others who comment on public affairs.
While A’s media profile placed him squarely within this category, the decision, which is in line with the test found in s. 4 of the Defamation Act 2014, points to the protection that will be afforded to less high profile figures who nevertheless make a contribution to public debate.