Rules of display of images of public officials – complaint brought to Supreme Court

The HFHR supported journalists of local media outlets in the submission of a complaint in cassation to the Supreme Court. The journalists’ case concerns the right to protect the image of public officials and rules governing the publication of such an image. As a courtesy to the HFHR, Mr Grzegorz Leśniewski, a lawyer of Olesiński i Wspólnicy sp. k., took on the case pro bono and drafted a complaint in cassation to the Supreme Court.

The local magazine NOWa Gazeta Trzebnicka ran a series of articles about a police officer driving her own car to work without a valid driving licence. The articles were based on tips the journalists received from readers. The publications contained the officer’s personal information and her photograph. Furthermore, the newspaper’s YouTube channel featured a video depicting the officer entering her vehicle.

The officer sued the magazine’s editorial team, alleging a violation of her publicity rights and seeking an injunction that would ban further publications and dissemination of her image. She also requested that the articles be removed from websites. The Regional Court in Wrocław ruled for the journalists and held that their reporting was truthful and that they had exercised the proper care and diligence in writing the article. The police officer appealed the first instance ruling. On appeal, a court upheld the original judgment in the part relating to the article’s content but ordered the removal of the officer’s image from the magazine’s website and the video recording. The court also obliged the defendants to issue apologies to the claimant on the weekly magazine’s website.

The Court of Appeal decided that although the article was accurate, the journalists had violated the rules of dissemination of a person’s image defined in Article 81 of the Copyrights Act because they added the officer’s photos to the text. Article 81 provides that a person’s image may be disseminated if the person concerned consents to such a dissemination. One of the exemptions to this rule applies in the situation where a publication contains the image of a public figure, which is captured in connection with their performance of public functions, notably political, social or professional functions. The court ruled that on the facts of the case the officer may not be considered a “public figure”.

The complaint in cassation argues that the appellate court’s interpretation of the notion of “public figure” was too narrow given the standards of freedom of speech. An image of a public official published in connection with the official’s function should not enjoy the same level of protection as that afforded to the images of private citizens. The above argument is justified not only by the public function performed by public officials (which understandably raises the interest of the members of the public); it is also based on the contention that as the police officer has broken the law, she “entered the public arena”, attracting additional interest of the media and the public.

The complaint also noted that a journalist should have the right to report abuses committed by persons who perform public functions in a form they consider proper for the fullest exercise of citizens’ right to receive information. This is particularly important in the context of the realities of contemporary informational society, which relies, to a large extent, on the image-based culture.