Creator of Antykomor.pl will not be punished for defaming President

The Court of Appeal in Łódź discontinued the case against the creator of the Antykomor.pl web portal with respect to the charges involving defamation of the President of Poland. The Court held that the defendant’s conduct satisfied the statutory definition of the respective criminal offence but, at the same time, caused negligible social harm. In the decision, the judges noted that the case raised a number of important legal questions in the area of the freedom of speech.

The Court found the defendant guilty on the remaining counts (including the forgery of a student ID) and sentenced Robert Frycz to 30 hours of community service per month, to be imposed for the duration of 12 months (case no. 56/12).

In his verbal reasons for the judgment, judge Piotr Feliniak expressly separated the issue of defamation from the forgery charges. He underscored that the former had to be treated with utmost care as it related to the theme of the freedom of speech.

At the outset, the judge noted a critical approach to the model of a differentiated regulation of defamation in criminal law that had been expressed by both the courts and the legal doctrine. Under current law, different provisions of the Criminal Code apply to defamation of the Head of the State, “a constitutional organ of the State”, public officer and an “ordinary citizen” (respectively, articles 135(2), 226(3), 226(1) and 216). Defamation of the President carries the most severe sanctions. Yet the legal doctrine often argues a need for a uniform regulation of defamation, with the identity of an aggrieved party being only an element considered at the sentencing stage.

Then the judge made a reference to the “thick skin rule” according to which public persons, and in particular politicians, are required to demonstrate a higher tolerance for criticism. He also pointed to the “freezing effect” of overly severe criminal sanctions for speech affecting the freedom of expression, which may discourage others from criticising certain persons or phenomena. It seems that the above circumstances were not considered by the first instance court in a sufficient detail.

The appellate court also took into account the fact that Mr Frycz had not authored the images and games accessible at Antykomor.pl but had only received the defamatory content created by third parties. Moreover, the Court noted that such content is universally accessible online, which could lead to the defendant’s reasonable assumption that its dissemination was legal. The above considerations were said to have affected the defendant’s “state of mind” and as such needed to be made part of the judicial examination of the intent accompanying the defendant’s actions.

The appellate court also noted that the first instance court failed to sufficiently substantiate the defamatory character of the games available at the website. It was so because the Circuit Court focused on the fact that the games might incite violence, which is not a proper legal test for defamation. The Court of Appeal also found that the first instance court should have considered the position of the aggrieved party. This, however, did not mean that the President was required to testify as a witness during the trial. On the other hand, the Circuit Court should have considered the public statements made, among others, by Presidential Chancellery officials who confirmed that the President was aware of the criticism that may be directed at him as a public figure and was willing to tolerate also potentially offensive satire.

In the summary of the reasons, the Court of Appeal held that the above circumstances were considered in the assessment of the negligible social harm caused by the offence and had a decisive impact on the decision to discontinue the case. According to the Court, the defamation charges brought against the defendant should be dropped by the prosecution already at the pre-trial stage of the criminal proceedings. At the same time judge Feliniak observed that discontinuation of the proceedings in that individual case did not mean that other defendants accused of defaming the President should always expect a similar outcome, and reminded that defamation of the President was still a punishable criminal offence.

The judgement is final. The parties may file a cassation complaint with the Supreme Court.