ARTICLE 19 welcomes the verdict of the Court of Appeal in Warsaw on 6 November 2020 to dismiss the SLAPP (strategic lawsuit against public participation) lawsuit against Professor Wojciech Sadurski brought by the ruling party Law and Justice (PiS). ARTICLE 19 monitored the trial from the start, published a third party intervention and monitored in person court hearings since November 2019. The verdict is an important pushback against efforts by the ruling PiS to attack and undermine the rule of law, human rights and judicial independence.
Wojciech Sadurski is a highly respected professor of law at the University of Sydney and the University of Warsaw who frequently publishes political opinions on his Twitter account. He is known as a vocal critic of the PiS, as well as the crackdown on human rights and judicial independence in Poland. Sadurski published a tweet on 10 November 2018 characterizing the PiS as “an organized criminal group”. The tweet called upon citizens to boycott a so-called “Independence March” to be held in Warsaw, which is organised by radical right-wing groups annually. The text read: “If anyone still had any doubts, after the maneuver of the past two days this much should be clear: no honest person should go in a parade of defenders of the White race, who have hidden for a moment their “falangas” [a neo-Nazi symbol] and swastikas, in collusion with an organized criminal group Law and Justice”.
As a result, the ruling party brought a civil defamation lawsuit against Wojciech Sadurski “for protection of personal rights” [in Polish ”pozew o ochronę dóbr osobistych”] under Articles 23 and 24 par. 1 of the Civil Code. They demanded a public apology in the form of an expensive advertisement in a daily newspaper; an injunction that the defendant refrain in future from any statements which imply that the activities of the Law and Justice party may be in any way compared to any criminal activities; a payment to nominated charities; and paying all costs associated with the case.
ARTICLE 19 in its submission noted that it has been widely accepted that politicians and political parties must tolerate a greater degree of criticism and scrutiny than ordinary citizens and criticism against them might be provocative, controversial or offensive. When assessing the validity of any claims brought against these individuals, it is essential to consider that the majority of comments made by private individuals online are likely to be too trivial in character, and/or the extent of their publication too limited, for them to cause any significant damage to another’s reputation. Furthermore, the opinions expressed are not truth-statements and are therefore impervious to being proven or disproven.
The case was initially dismissed by the court of first instance [Sąd Okręgowy w Warszawie] on 18 June 2020, with the judge emphasizing the importance of freedom of expression in democratic societies, which extends to statements that may be shocking and harsh, and that politicians, public figures and political parties must show a higher degree of tolerance to criticism. The judge referred to the Constitution of Poland (Art. 54), international human rights conventions and case law of the European Court of Human Rights (ECtHR).
However, the PiS filed an appeal to the Court of Appeal in Warsaw. The hearing took place on 6 November 2020, with professor Sadurski joining online from Sydney. The Court upheld the decision of the court of first instance, emphasising that a verdict in favour of the ruling party would have a chilling effect on freedom of expression in Poland.
“This is a victory for freedom of expression in Poland – said Sarah Clarke, head of Europe and Central Asia. “SLAPP lawsuits are not designed to be won but to intimidate and silence voices which are critical and hold power to account. The abuse of defamation laws has become a significant threat to media freedom and public interest advocacy in a number of countries, including Poland. We welcome the decision of the court in Warsaw, especially at a time when the ruling party is dismantling the rule of law and independent judiciary, with “disciplinary” procedures against judges who don’t give up their independence. In today’s Poland, issuing such a decision against the ruling party is an act of courage”
This is not the end of struggle for Professor Sadurski – there are two more lawsuits brought against him by the public broadcaster TVP for another of his tweets. ARTICLE 19 continues to support Wojciech Sadurski and reiterates the call for the public broadcaster to drop both civil and criminal defamation lawsuits against him.