Amicus curiae brief in a case Remuszko against Poland

Mr Remuszko is a journalist. In 1999 he authored the book ‘Gazeta Wyborcza. Początki i okolice’ (Gazeta Wyborcza. Beginnings and Beyond), which presented the beginnings of the major Polish daily in an unfavourable light. In 2003 the second edition of the book appeared but no reviews were published in the print media.

Mr Remuszko asked seven dailies and weeklies to publish identical paid advertisements of his book. All the papers he approached (Nasz Dziennik, Wprost, Metropol, Newsweek, Polityka, Rzeczpospolita, Gazeta Polska) refused to run the advert.

Mr Remuszko filed seven suits with the Circuit Court in Warsaw. The relief he asked was a court order requesting that the advert be published, arguing that the newspapers failed to show any cause for refusal as listed under the Press Act.

Mr Remuszko claims against Nasz Dziennik, Wprost, Metropol, Newsweek and Polityka were dismissed. On appeal, the Appellate Court in Warsaw reversed the first-instance judgement and allowed Mr Remuszko’s claims against Nasz Dziennik, Wprost and Metropol, ordering publication of the advertisement. The appeal against Newsweek and that against Polityka were, respectively, rejected on procedural grounds and dismissed.

In the case against Rzeczpospolita in March 2004 the Circuit Court in Warsaw dismissed the claim arguing that paid advertisements must satisfy not only the requirements under article 36 of the Press Act but also follow the public policy rule. In the opinion of the Circuit Court, the publishers of Rzeczpospolita knew contents of the book and were aware that the advert’s publication could be deemed an endorsement of the ideas presented in the book which, in turn, might infringe third party rights and result in civil sanctions imposed against the publisher. Accordingly, in the court’s view, the publisher not only had a right but also was under a duty to refuse to publish such an advertisement.

Mr Remuszko appealed. The Court of Appeal reversed the judgment, remanding the case for retrial. In 2007 the Circuit Court in Warsaw dismissed the claim of Mr Remuszko. The court found that the advertisement was contrary to the paper’s profile and its publication might have resulted in a suspicion that Rzeczpospolita wished to smear the market competitor. According to the Circuit Court publishers are not legally obliged to disseminate ideas and statements which they don’t subscribe to. The court held that the advert failed to meet the requirements laid down in the press law.

In March 2009 the Supreme Court dismissed the cassation complaint in the case of Remuszko v. Rzeczpospolita, holding that the press market is ruled by the principle of market freedom. The Court also noted that publishers cannot be forced to publish all the advertisements they receive.

In December 2009 Mr Remuszko filed an application with the European Court of Human Rights in Strasburg alleging that Poland has violated Articles 10 (freedom of expression) and 14 (prohibition of discrimination) of the European Convention on Human Rights. On 2 May 2011, the European Court of Human Rights communicated the case to the Polish Government.

In its amicus curiae brief, the Helsinki Foundation for Human Rights noted that the case Remuszko v. Poland is an example of a restriction of the horizontal effect of the freedom of expression, that is at the level of relations between organisations and individuals. The HFHR observed that the issues relating to the horizontal exercise of human rights may appear, for instance, in the context of the advertisement of press distribution markets which are indeed usually operated by private organisations.

According to the HFHR, the case Remuszko v. Poland illustrates the necessity of establishing clear criteria for balancing the principle of freedom of contract and the right to communicate (advertise) ideas or products, especially where such ideas or products aim to provoke public debate about them.