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Comentary on judgment concerning freedom of speech

On 21 July, the Warsaw Circuit Court ruled in a much-publicised civil case brought by Agora S.A., the publisher of Gazeta Wyborcza, against writer Jarosław Marek Rymkiewicz. We present a commentary on this judgment by our legal expert, Ireneusz C. Kamiński.

The cause of this action was the writer’s statement contained in his interview for Gazeta Polska, given at the time of the conflict over the cross erected in front of the Presidential Palace in Warsaw. Mr. Rymkiewicz said: ‘The Poles standing by this cross express their will to remain Poles. This is exactly what has stirred such rage, anger, such hatred, for instance in editors of Gazeta Wyborcza who want Poles to finally cease being Poles’. According to the writer, the daily’s editors are ‘spiritual heirs to the Communist Party of Poland’ and ‘the parents or grand-parents of many of [those who] belonged to this party, tainted by the spirit of Luxembourgism, hence based on the hatred of Poland and Poles’. Mr. Rymkiewicz also said that ‘the editors were brought up to hate the Polish cross. I think they are deserving of compassion – Polish Catholics should pray for them’. The court ruled that the author’s words had infringed upon Agora’s legally protected interests and ordered him to apologise to the company and pay PLN 5,000 for a care centre for the blind in lieu of damages.

Mr. Rymkiewicz’s statement is hardly elegant. Yet elegance is not a legal criterion for establishing a breach of the freedom of expression as a cause of legal action. In the political debate on important public issues (such as the ‘cross controversy’), the law should tolerate expressive and harsh statements, though this doesn’t mean that such expressions deserve our acceptance in non-legal terms. Judges of the European Court of Human Rights (ECtHR) in Strasbourg have repeatedly expressed their ‘lay’ disapproval for critical words but nonetheless found that even minor sanctions imposed by domestic courts had been an infringement of the principle of the freedom of speech laid down in Article 10 of the European Convention on Human Rights (ECHR). This was also the Court’s approach in cases where political adversaries had been characterised by such expressions as being labeled ‘an idiot’ (Oberschlick v. Austria (no. 2)), ‘buffoonish’ and ‘coarse’ (Lopes Gomes da Silva v. Portugal) or a ‘political invalid’ (Pakdemirli v. Turkey).

However, there is an additional legally valid element in the case of Mr. Rymkiewicz’s interview, one that must be indeed brought to attention. The action has not been initiated by named individuals as no individuals had been named by the writer in his statement. The lawsuit was to protect the interests and renown of the company publishing Gazeta Wyborcza, a separate commercial entity.

On 19 July, two days before the Warsaw court’s decision in the Rymkiewicz case was issued, the European Court of Human Rights ruled in the case of Uj v. Hungary, finding an infringement of Article 10 of the ECHR. The applicant in Uj was a journalist who concluded his criticism of a wine variety produced by a certain company with the statement that the beverage in question was nothing more than ‘shit’. He was found guilty of infringing the wine company’s right to a good reputation in the criminal case heard before the Hungarian courts which, at the same time, treated him with leniency, finally imposing only a penalty of reprimand.

In the unanimous judgment, the Strasbourg Court challenged this minor, or even token, sanction. The key section of the ECtHR judgement reads as follows: ‘… there is a difference between the commercial reputational interests of a company and the reputation of an individual concerning his or her social status. Whereas the latter might have repercussions on one’s dignity, for the Court interests of commercial reputation are devoid of that moral dimension. In the instant application, the reputational interest at stake is that of a State-owned corporation; it is thus a commercial one without relevance to moral character.’ (para. 22).

We don’t yet know the reasoning behind the judgment rendered in the Rymkiewicz case. However, it is to be expected that the Warsaw court, in identifying the legally protected interests of Agora, failed to refer to the commercial dimension of the company’s reputation, thus failing to establish any detrimental effect of the writer’s statement on ‘the commercial success and viability’ of the company (Uj v. Hungary, para. 22). The lack of such an analysis which, in any case, would be hardly conceivable due to the ‘non-commercial’ nature of the author’s statement, may result in the Polish judgment being treated by the ECtHR in the same way as the Hungarian decision, if Rymkiewicz decides to bring an application before the European Court of Human Rights.

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