ECtHR: refusal to publish advertisement does not violate freedom of speech

Last week, the Strasbourg Court proclaimed judgement in the case of Remuszko v. Poland. The ruling concerned the freedom of speech aspect of the relations between advertisers and press publishers. The ECtHR held that Poland had not violated the European Convention on Human Rights.

In 1999 journalist Stanisław Remuszko wrote the book “Gazeta Wyborcza. Początki i okolice” (Gazeta Wyborcza. Beginnings and Beyond) which presented, in an unfavourable light, the story of the founding of Gazeta Wyborcza, a major Polish daily newspaper. Mr Remuszko asked seven daily and weekly newspapers to publish identical paid advertisements of his book. All the papers he approached (“Nasz Dziennik”, “Wprost”, “Metropol”, “Newsweek”, “Polityka”, “Rzeczpospolita”, “Gazeta Polska”) refused to run the advert.

Stanisław Remuszko brought court actions against the newspapers, arguing that the publishers could not legally refuse to publish his advert under the Polish press law. In some cases courts ruled in his favour, but a majority of his actions were dismissed.

Mr Remuszko’s application to the ECtHR related to the proceedings he instituted against the “Rzeczpospolita” daily. In that case domestic courts ruled that the publisher had the right to refuse to publish the advert as “incompatible with the newspaper’s editorial profile” since the publication of the advertisement could have given rise to a suspicion that “Rzeczpospolita” was trying to denigrate its market competitor. In his application to the ECtHR, Mr Remuszko alleged that the courts affirming the newspaper’s refusal to publish his advert in violation of the right to the freedom of expression under Article 10 of the European Convention on Human Rights.

However, the Strasbourg Court unanimously decided that the guarantee of freedom of expression had not been breached. The Court held that privately owned newspapers must be free to exercise editorial discretion in deciding whether to publish materials submitted to the editorial team. In the view of the ECtHR, the State’s obligation to ensure the individual’s freedom of expression does not mean that such individuals have an unrestricted access to the media in order to publish any content whatsoever. The Court also resolved that the media had the right to establish and apply their own policies in respect of advertisements.

The ECtHR further noted that the newspaper’s refusal to publish the applicant’s advert did not deprive him of the ability to disseminate or otherwise market the book itself.

HFHR has filed an amicus curiae brief in the proceedings pending before the ECtHR. “In the brief we argued that the case is of significant importance in the context of the Convention ‘radiating’ onto relations between individuals”, says Dorota Głowacka, HFHR lawyer. “We emphasised, on a number of occasions, that guarantees of the freedom of expression should be respected not only in state-citizen relationships but also in dealings between private entities”, adds Ms Głowacka.

According to the HFHR, a publisher should not enjoy an unlimited discretion in deciding to refuse publication of advertisements as that causes the risk that a dominant player on a given section of the advertisement market may in practice block access to certain content for members of the public.