Court prohibits use of journalist’s image in anti-refugee campaign spot

On 18 February 2019, the Regional Court in Warsaw forbade the publication of a campaign spot that raised a wave of protests because of its anti-refugee message. The injunction granted in this respect is valid for a year and covers the portion of the spot featuring a journalist’s image, which was used without consent of the person concerned.

Injunction against unauthorised display of image

The court explained that the facts raised in the statement of claims suggested that the journalist, Justyna Śliwowska-Mróz, had not given her consent to the use of her image in a spot used for the purposes of an electoral campaign. The court took into account the context in which the image of the journalist was used and disseminated and ruled that there was prima facie evidence that the spot had caused damage to the good name of Ms Śliwowska-Mróz. The court noted that under Polish law, a person’s good name includes their professional reputation, which, as far as the journalistic profession is concerned, is heavily based on independence. At the same time, the court stressed that independence correlated with the requirements of objectivity, integrity and diligence provided for in the press law. The court also emphasised that the inclusion of a journalist’s image in the material prepared by the electoral committee of a political party for campaigning purposes may undermine the above attributes of the journalist.

The court found that in the spot might be perceived by the general public as consolidating the conviction that the journalist publicly identifies herself with the content presented and endorses the candidates proposed by the political party. Therefore, the court decided to grant an injunction by banning the political party from publishing the spot for one year in so far as it includes Justyna Śliwowska-Mróz’s image.

Personality rights lawsuit

In October 2018, during the local government elections, a political party published an election spot which used the journalist’s image, displayed without her consent. The Ombudsman, among others, intervened in the case, requesting a prosecutor’s office to initiate an ex officio case concerning the perpetration of the offence of hate speech incitement. The prosecutor’s office refused to investigate, but on 19 February 2019, a district court upheld the interlocutory appeal against the refusal made by the Ombudsman and the Association for Legal Intervention.

At the request of the HFHR, the journalist received pro bono representation from lawyers of Leśnodorski, Ślusarek i Wspólnicy, who brought a civil action on her behalf seeking redress of personality rights infringement. In the action, the journalist demands, among other things, that the election spot should be removed from online sources and the defendants be obliged to pay PLN 20,000 to a charity.

According to the Helsinki Foundation for Human Rights, the case is an example of the exploitation of journalists in political campaigning, which is incompatible with the principle of journalistic impartiality and integrity. Such actions, performed without consent of the person concerned, result in a violation of their good name and jeopardise the freedom of the media.

The case is litigated under a grant from Media Legal Defence Initiative, which offers legal aid for journalists and bloggers.