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Blogger has lost a lawsuit concerning the comments posted by internet users

The Circuit Court in Tarnów has ruled against A.J. in the case involving the protection of personal interests. The claimant, former mayor of the R. town, claimed that he had lost his second term in the last local elections because of an offensive comment posted under an article on the respondent’s blog.

He persisted in his claim even though A.J. almost instantly had blocked the disputed comment. The Court has allowed the suit on its merits and found the respondent A.J., the blog’s administrator, guilty of ‘disseminating’ illegal contents.

The respondent A.J. is a councillor sitting on R. town council and the author of the blog intended as a forum for the exchange of information and for debate on the affairs of the town and commune. Prior to the local elections in 2010 a commentary appeared under one of the articles on the respondent’s blog which included contents offensive to the then mayor R. The comment was posted under a pseudonym.

The defendant removed the insulting entry from the blog and blocked any subsequent attempts of adding a comment. Despite this, the Mayor B.K. brought against A.J. the action for the protection of personal interests under the election procedure. The courts hearing the cases under the election procedure ruled in favour of B.K. and found A.J. guilty of ‘disseminating’ illegal contents violating personal interests. Following the above verdict, on 18 May 2011 the HFHR, representing A.J., submitted an application to the European Court of Human Rights in Strasbourg . In the application the Foundation argued a violation of Article 10 of the European Convention on Human Rights, i.e. the right to freedom of expression.

In 2010 B.K. lost in the local elections. In April 2011 he filed with the Circuit Court in Tarnów the suit for the protection of personal interests against A.J. The cause of action was posting the offensive comment during the election campaign which allegedly caused the claimant’s failure in the elections. The HFHR filed an amicus curiae brief in the proceedings.

Last week the Circuit Court in Tarnów entered a verdict in this case in which it partly allowed the claimant’s claim. The court ordered the respondent to publish twice an apology in the local supplement to Dziennik Polski for ‘disseminating’ contents violating personal interests of the claimant and his family. It also ordered the respondent to pay PLN 1,000 as compensation and to reimburse the costs of the trial amounting to PLN 650. The Court dismissed the remaining portion of the claim where the claimant sought, among other things, a compensation of PLN 10,000.

The Court stated that for many years the respondent’s blog had been used as an information channel for election campaigning. The Court reasoned that once the respondent agreed to ‘take the risk that illegal contents might be posted on the blog’ (in the form of comments added by third parties who would not have to log in or whose entries would not be controlled prior to posting) and ‘in such a number which made it impossible for the defendant to filter them’ he had to become well-aware of the fact that he may be held liable for such comments.

Giving the verbal justification of the judgment, the court failed to comment on the HFHR’s argument regarding a special character of intermediaries’ responsibility for the published content raised in the amicus curiae brief. The court only held that ‘neither the blog’s website policy nor the Electronic Services Act can abolish provisions of the Civil Code’.

The trial was closed to the public. The case was a part of the Observatory of the Freedom of Media in Poland Programme.

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