ECHR: Case of Wizerkaniuk v. Poland

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ARTICLE 19

05 Jul 2011

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5 July 2011, Application No. 18990/05 (European Court of Human Rights)

The applicant, editor of a local newspaper, was found guilty of the charge of publishing an interview with a local Member of Parliament without the consent of the latter.

Theme:

Print media regulation; journalists and media workers; media regulation: general issues; freedom of information

Sub-Issues:

Scope of the right; exceptions; procedural issues

Test:

Legitimate purpose; necessary in a democratic society

Penalty:

Financial

Decision:

Violation of freedom of expression (Article 10 ECHR); unanimous with 2 joint concurring opinions

Jurisdiction:

European Court of Human Rights: Poland

Facts:

The applicant, Mr. Jerzy Wizerkaniuk, is a Polish national who was born in 1952 and lives in Kościan. At the material time he was a chief editor and a co-owner of the local newspaper “Gazeta Kościańska”, published in Kościan. On 24 February 2003 two journalists working for the applicant’s newspaper interviewed a local M.P., Mr. T.M. The entirety of the interview was tape-recorded. When Mr. T.M. was presented with an edited version of the interview prior to publication, he refused to give the newspaper his permission to publish. Two months later, after determining that its readers would be eager to read the interview, the newspaper published several sections of the interview transcript verbatim, with no editing whatsoever. Shortly after this publication, charges were filed against Mr. Wizerkaniuk under Poland’s 1984 Press Act, which provided for a criminal sanction if an interview was published without the prior consent of the interviewee.  Mr. Wizerkaniuk was found guilty and charged with a fine.  He then unsuccessfully challenged the Press Act before the Polish Constitutional Court. The majority of the Constitutional Court held that the legal requirement of obtaining authorisation before publication is a legitimate protection of the interviewee’s reputation and a valuable guarantee to readers that all published quotes are authentic.

Held:

The ECHR Court unanimously held that there were violations of freedom of expression and Article 10 of the European Convention on Human Rights (ECHR) on account of the criminal sanctions imposed on the applicant. The Court took the view that the interference with the applicant's freedom of expression rights under Article 10 was unnecessary in a democratic society given that civil remedies for protection of reputations are available in Poland and the threat of criminal sanctions for journalists who publish interviews is likely to have a substantial chilling effect.

Legitimate purpose

The Court did not find persuasive the Polish government’s argument that this interference with freedom of expression served the legitimate purpose of the “protection of the reputation or rights of others”, given that it had never been argued either before the Court or in the domestic proceedings that the interview’s publication was capable of damaging the M.P.’s reputation. Nevertheless, the Court was willing to accept for the purposes of the case at hand that the interference served some legitimate purpose.

Necessary in a democratic society

Regarding the test of whether the interference was necessary in a democratic society, the Court recalled that:

 

[T]his depends on whether the interference complained of corresponded to a pressing social need, whether it was proportionate to the legitimate aim pursued and whether the reasons given by the national authorities to justify it are relevant and sufficient. (at para. 64)

 

The Court disagreed with the Polish courts as to whether criminal sanctions under the Press Act were necessary in order to protect the reputation of the interviewed person. Under domestic Polish law, there are a number of civil remedies available if the politician’s reputation had indeed been violated in this case. Unlike the Polish court, the Court found that these civil remedies are sufficient for the protection of reputation.

 

As the interview was conducted with Mr. T.M. in the context of his public work as a politician, about which local society was entitled to be informed, the Court concluded that Mr. Wizerkaniuk had a genuine journalistic duty to publish the contents of the interview.

 

Furthermore, the Court noted that the Press Act was enacted almost three decades ago, before the collapse of the Communist system in Poland.  Although many sections of the Press Act have since been amended, the provisions of sections 14 and 49 on which the applicant’s conviction was based, were not. The Court concluded that:

 

[A]s applied in the present case, the provisions cannot be said to be compatible with the tenets of a democratic society and with the significance that freedom of expression assumes in the context of such a society. (at para. 84)

 

The Court concluded that the criminal proceedings brought against Mr. Wizerkaniuk were disproportionate under the circumstances and that therefore Article 10 of the Convention had been violated.

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