Supreme Court to rule on legality of publication of lawbreaking police officer’s photo

The Helsinki Foundation for Human Rights has submitted an amicus curiae brief in a case that concerns the protection of the image of public officials and rules governing press publication of such an image.

Police officer drives without licence

The local news 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 publications contained the officer’s personal information and her photograph. A video depicting the officer entering her vehicle was also published online. The officer brought a civil action against the magazine, seeking a remedy against a violation of personal interests.

The Court of Appeal in Wrocław decided that although the article contained true information, was fully accurate and raised a point of public interest, 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. The court concluded that the image had been published without the officer’s consent and the journalists could not rely on any legal defence defined in the copyrights law. In particular, the Court of Appeal held that the officer could not have been considered a “public figure”, given the case facts. The court ordered the defendants to remove the officer’s image from the magazine’s website and erase her likeliness from the video recording. The magazine was also requested to publish an apology on the magazine’s website.

Complaint in cassation

In November 2016, the journalists filed a complaint in cassation to the Supreme Court. As a gesture of courtesy to the HFHR, Mr Grzegorz Leśniewski, a lawyer of Olesiński i Wspólnicy sp. k., drafted the complaint. The complaint argues that the Court of Appeal’s interpretation of the concept of “a public figure” was too narrow given the standards of freedom of speech. It also read that an image of a public official presented in connection with the official’s function should not enjoy the same, elevated level of protection as that afforded to the images of private citizens. On the appellant’s counsel motion, the Court of Appeal ceased the enforcement of the judgment challenged in the complaint in cassation.

HFHR brief

In its amicus curiae brief, the HFHR noted that the sanctions imposed on journalists raise serious doubts in light of the standards developed by the ECtHR. The ECtHR has many times ruled that if a statement made by a journalist is accurate and concerns an issue of public significance, the journalist generally should not feel any negative consequences of a dissemination of one’s image that occurs as part of the publication of such a statement. The above is especially true in a situation when a publication of an image of an adult performing a public function seeks to prove or confirm the truthfulness of credibility of a piece of news as a whole. The HFHR’s amicus reads: “It should be considered extremely probable, almost certain, that the ECtHR will rule on a violation of Article 10 [ECTHR] provided that domestic courts confirm that the statement lies within the realm of a specially protected area and its author complied with the accuracy and diligence requirements whereas the sole reason for the judicial interference was the form […] of the statement”.

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The HFHR wishes to express thanks and appreciation to Olesiński i Wspólnicy sp.k. for the firm’s pro bono involvement in the case.