Judgment in the Case Initiated by Dorota Rabczewska’s Complaint Against Mieszek Sibilski

In a judgment pronounced on July 8, 2011, the Court of Appeal in Poznan has demanded that Mieszek Sibilski apologize to pop singer Dorota Rabczewska for the contents of his publication on the Web site www.grupaoperacyjna.pl.

The Court determined the means of removing the consequences of the violation of the plaintiff’s personal rights differently than in its previous judgment, as it demanded the publication of a statement on the Grupa Operacyjna website for the duration of a month.  At the same time, however, the rapper was not obligated to post an apology on the website Onet.pl, which would have cost him up to 32 million PLN.The statement of apology is to be worded to state that Mieszko S. apologizes to Dorota Rabczewska for tarnishing her reputation in his Open Letter to Radosław Majdan, published in 2007.  In its judgment, the court additionally authorized the plaintiff to publish the verdict to her Web site.

To recapitulate, the case began with the posting of a track, which contained lyrics such as “blachara” (roughly, gold-digger) and “rży jak koń” (neighs like a horse), addressed at the plaintiff, to www.grupaoperacjyna.pl, the website of the hip-hop group Grupa Operacyjna.  The singer felt offended by the contents of the track, and brought an action against the group for violating her personal rights.

The Court of Appeal in Poznan then demanded that the defendant, Mieszko S., publish a statement in the form, and with the contents, requested by the plaintiff; that is, on the Onet.pl network of websites in the form of a 90 x 60mm pop-up window for the duration of seven days, as well as on the www.grupaoperacyjna.pl website in 180 x 125mm format, for the duration of two months.

The Helsinki Foundation for Human Rights prepared its legal opinion on the case.  According to information received by members of the Helsinki Foundation for Human Rights from the Onet.pl network, the pop-up window format is no longer in use.  The format most similar to that indicated by the court is the toplayer window, which is an advertisement in animated form which may contain sound effects, displayed above the contents of a Web page for a given amount of time.  According to the data obtained from the Onet Group, the cost of publishing the verdict in such a format would amount to 32 million PLN.

In its opinion, the Foundation expressed its doubts as to the adequacy of the form of the statement demanded by the court in its judgment of the case, as well as to the proportionality of the publication of the apology on the Onet.pl network.  In the appraisal of the Foundation, the Court of Appeals should perform an appraisal of the fulfillment of the condition of the adequacy of the judgment as a means of mitigating the violation of the plaintiff’s personal rights.

In the view of the Foundation, the formulation of a positively-expressed requirement to analyze the proportionality of the plaintiff’s request to the judgment at issue is desirable.  It would be particularly expedient to emphasize, in non-property claims cases, the requirement, postulated by legal doctrine, of examining not only the general substantial prerequisites of the litigation, but also the requested legal means of non-property protection.

The judicial oversight in this regard should be based on the principle of [sic!].  In the opinion of the Foundation, the judgment should be entirely rational in nature.  The mere fact that the defendant does not raise an objection in a given form should not deprive the judgment of this  feature.

The defendant, Mieszko S., filed a cassation appeal of the Court of Appeal’s judgment.  The Supreme Court, in a judgment dated February 3, 2011, rescinded the contested judgment and referred the case for re-examination.

In its verbal justification, the Supreme Court stated that, in the case of litigation concerning the protection of personal rights, it is necessary to precisely identify the personal right being protected, as such a measure is necessary in order to determine the means necessary to mitigate the consequences of the violation.

The Supreme Court recognized that the Court of Appeal did not consider whether the requested form of mitigation of the consequences of the personal rights violation was adequate to the confirmed violation.  In the opinion of the Supreme Court, the Court should investigate whether the plaintiff’s demand for the publication of the apology is appropriate, in its form and content, for the mitigation of the consequences of the personal rights violation.

In addition, the Supreme Court stated that the court may, additionally, take into account the costs of the statement of apology.  The Supreme Court deemed that the judgment should be possible to carry out and should be realistic from an economic perspective.  These questions, however, should be raised by the plaintiff in a common court of law, rather than in a court of cassation, the Supreme Court opined.  In the appraisal of the Supreme Court, the defendant indicated the problem aptly in his appeal; however, the issue could not have been a valid basis for a cassation ruling.