ECHR: Poland has violated the freedom of speech

On 5 July 2011 the European Court of Human Rights entered an important judgement in the case of Wizerkaniuk v. Poland, in which the Court held that the obligation to obtain an authorisation of the interviewee for the text to be published and the criminal liability for non-compliance with this requirement constituted a breach of Article 10 of the European Convention on Human Rights, namely the right to the freedom of expression.

In 2003 authorities initiated the proceedings under Article 49 of the Press Act read in conjunction with Article 14 of this Act against Jerzy Wizerkaniuk, editor-in-chief of “Gazeta Kościańska”. The charges against Mr Wizerkaniuk were based on the lack of the interviewee’s authorisation to publish his statements. The journalist published an interview with a photo of a member of parliament without his express and unanimous consent. The proceedings in the case against the applicant were conditionally discontinued for a year and he was ordered by the court to pay the amount of PLN 1,000 for a community purpose. The editor-in-chief filed a complaint with the Constitutional Tribunal which, however, ruled that provisions on the authorisation obligation were in compliance with the Polish Constitution. Mr Wizerkaniuk also lodged an application with the European Court of Human Rights.

At variance with the TK’s ruling, the ECHR concluded that initiating criminal proceedings against the journalist and imposing on him the sanction of such severity amounted to a disproportionate interference with his right to the freedom of expression. Accordingly, the ECHR shared the dissenting opinion of Prof. A. Rzepliński submitted in a previous decision of the TK.

In its judgement the ECHR underlined, in particular, that Polish courts had disregarded two factors which were important for a proper settlement of the case. Firstly, the domestic courts did not refer to the substance of the interview and failed to examine whether the publication had really distorted actual statements of the politician, quoted them out of context or actually undermined the politician’s good name.

Secondly, the Polish courts did not consider the status of the interviewee or the fact that at the moment the interview was taken he was an active politician and an MP. According to the facts, he was undoubtedly a public figure, expected to be prepared that his actions will attract special public interest. ‘The very lack of distinction, in the cases involving freedom of speech, between the public figures and private individuals in the practice of the Polish courts is incompatible with the established case-law of the Court, which consistently emphasises that the protection against criticism granted to politicians is much narrower than that applicable to all other persons’, stressed the ECHR in its reasons for the judgement.