EHRM, 05-07-2011, nr. 18990/05

The Court must now examine whether the interference served a legitimate purpose. It notes the Government's argument that it was aimed at protecting the reputation of the M.P. (see paragraphs 44–46 above) and that it had therefore served the purpose of the ‘protection of the reputation or rights of others’. The Court does not find this argument persuasive as it has never been argued, either in the domestic proceedings or before the Court, that the interview published by the newspaper contained any information or opinions capable of damaging the M.P.'s reputation. The domestic courts in their decisions did not criticise the applicant for tarnishing it. Indeed, they did not even refer to the substance of the interview. Nor was it argued that the M.P.'s words were distorted and quoted out of context or conveyed in the manner which could have misled readers or depicted the M. P. in a negative light. The applicant's criminal conviction was based exclusively on a breach of a technical character, namely on the fact that he had published the interview despite the M.P.'s refusal to give his authorisation.

However, the Court is prepared to assume for the purposes of the instant case that the interference complained of served a legitimate purpose.

The Court must now examine whether this interference was ‘necessary in a democratic society’. The Court reiterates that this 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 (see Bladet Tromsø and Stensaas, cited above, § 58). The Court's task is not to take the place of the national courts but rather to review under Article 10, in the light of the case as a whole, the decisions they have taken pursuant to their power of appreciation (ibid., § 60, and see also Fressoz and Roire v. France, cited above, § 45). In doing so, the Court has to satisfy itself that the national authorities applied standards which were in conformity with the principles embodied in Article 10 and, moreover, that they based themselves on an acceptable assessment of the relevant facts (see Jersild v. Denmark, 23 September 1994, § 31, Series A no. 298, and Veraart v. the Netherlands, no. 10807/04, § 61, 30 November 2006).

The Contracting States have a certain margin of appreciation in assessing whether in the circumstances of a concrete case a pressing social need exists, but it goes hand in hand with European supervision, embracing both the legislation and the decisions applying it, even those delivered by an independent court. The Court is therefore empowered to give the final ruling on whether a ‘restriction’ is reconcilable with freedom of expression as protected by Article 10 (see, among many other authorities, Perna v. Italy [GC], no. 48898/99, § 39, ECHR 2003-V, and Cumpãnã and Mazãre v. Romania [GC], no. 33348/96, § 88, ECHR 2004-XI).

In the present case the authorities applied the 1984 Press Act when examining the criminal case against the applicant. That Act imposed on the applicant, as an editor-in-chief, an unequivocal obligation to seek and to obtain the authorisation of the interviewed person before publishing an interview, regardless of the subject-matter of that interview and its content. That authorisation amounted to certifying that the text proposed for publication corresponded to what had actually been said during the interview.

In this connection, the Court reiterates that while it is true that Article 10 of the Convention does not in terms prohibit the imposition of prior restraints on publications, the dangers inherent in prior restraints call for the most careful scrutiny on the Court's part (see Chauvy and Others v. France, no. 64915/01, § 66, ECHR 2004-VI; and Társaság a Szabadságjogokért v. Hungary, no. 37374/05, § 36, ECHR 2009-…; Gawęda v. Poland, no. 26229/95, § 35, ECHR 2002-II; and The Observer and The Guardian, cited above, p. 30, § 60). Where freedom of the press is at stake, the national authorities have only a limited margin of appreciation to decide whether there is a ‘pressing social need’ to take such measures (Editions Plon v. France, no. 58148/00, § 44, ECHR 2004-IV).

It is not in dispute that the applicant published the verbatim excerpts from the interview concerned without obtaining the authorisation of the interviewed person.

The Court is of the view that an obligation to verify, before publication, whether a text based on statements made in the context of an interview and quoted verbatim is accurate can be said to amount, for the printed media, to a normal obligation of professional diligence. It can be expected, in the interests of responsible reporting, that a journalist will make appropriate efforts to ensure that his or her rendering of the interview corresponded to what was actually said and that such efforts constitute a natural part of the journalist's work. The impugned provisions of the Polish Press Act were aimed at ensuring compliance with journalists' professional obligations. Their essential objective was to avoid the potential adverse effect of inaccurate reporting on the reputation of persons whose statements were reported by the press.

However, in the present case it is not only the obligation imposed under section 14 of the Press Act which constituted the legal background of the case, but the criminal sanction imposed for the applicant's failure to comply with that obligation, expressly provided for by section 49 of the same Act.

The Court reiterates that it must exercise caution when the measures taken or sanctions imposed by the national authorities are such as to dissuade the press from taking part in the discussion of matters of legitimate public concern (see Standard Verlags GmbH v. Austria, no. 13071/03, § 49, 2 November 2006; Kuliś and Różycki v. Poland, no. 27209/03, § 37, ECHR 2009-…). The chilling effect that the fear of criminal sanctions has on the exercise of journalistic freedom of expression is evident (see, mutatis mutandis, Wille v. Liechtenstein [GC], no. 28396/95, § 50, ECHR 1999-VII; Nikula v. Finland, no. 31611/96, § 54, ECHR 2002-II; Goodwin, cited above, p. 500, § 39; and Elci and Others v. Turkey, nos. 23145/93 and 25091/94, § 714, 13 November 2003). This effect, which works to the detriment of society as a whole, is likewise a factor which goes to the proportionality, and thus the justification, of the sanctions imposed on media professionals.

The Court has repeatedly stated that the nature and severity of the penalties imposed on media professionals are also factors to be taken into account when assessing whether the interference with their freedom of expression was necessary in a democratic society (see Skałka v. Poland, no. 43425/98, 27 May 2003, § 41–42; Cumpana and Mazare v. Romania, cited above, §§ 111–124; and Sokołowski v. Poland, no. 75955/01, § 51, 29 March 2005).

In the present case the first-instance court, when determining the sanction to be imposed on the applicant, observed that he had been motivated by his wish to fulfil his duty as a journalist by communicating to the public the interview given by the local M.P. The court accordingly concluded that the offence concerned could not be regarded as serious.

However, in the Court's view, the mere fact that the domestic courts' approach to the determination of the penalty to be imposed on the applicant was cautious cannot overshadow other considerations of a more fundamental character relating, in the first place, to the subject-matter of the publication concerned. In this connection, the Court reiterates that there is little scope under Article 10 § 2 of the Convention for restrictions on political speech or on debate on questions of public interest (see Bączkowski and Others v. Poland, no. 1543/06, § 98, ECHR 2007-VI; and Wojtas-Kaleta v. Poland, no. 20436/02, § 46, 16 July 2009).

The applicant interviewed the local M.P. about his political and business activities (see paragraph 7 above). His views and comments were indisputably a matter of general interest to the local community which the applicant was entitled to bring to the public's attention and the local population was entitled to receive information about such matters (see, mutatis mutandis, Cumpãnã and Mazãre v. Romania [GC], cited above, §§ 94-95).

The Court notes the Government's argument that the interest of open discussion should be weighed against the interest of protecting the M.P.'s reputation (see paragraph 46 above). However, even assuming that private life issues were raised in the interview, the Court reiterates that the limits of acceptable criticism are wider as regards a politician as such than as regards a private individual. Unlike the latter, the former inevitably and knowingly lays himself open to close scrutiny of his words and deeds by journalists and the public at large, and he must consequently display a greater degree of tolerance (see Lingens, cited above, § 42; Incal v. Turkey, judgment of 9 June 1998, Reports 1998-IV, p. 1567, § 54; and Scharsach and News Verlagsgesellschaft v. Austria, no. 39394/98, § 30, ECHR 2003-XI).

Moreover, the Court observes that the M.P. chose to request that criminal proceedings against the applicant be instituted and that the applicant was ultimately convicted. In the assessment of the case it should not be overlooked that the bill of indictment against the applicant was lodged by the public prosecutor, whereas the domestic law provided for the possibility of lodging private bills of indictment with the courts in cases concerning less serious offences. Hence, the national legislator was of the view that the offence defined by Section 14 read together with Article 49 of the Press Act was serious enough to warrant the involvement of the public prosecutor in the proceedings.

The Court further notes that the domestic courts imposed a criminal sanction on the applicant despite the fact that it was not in dispute that there had been no attempt at subterfuge on his part when he had tried to obtain the interview. The interviewee had expressed his consent to the interview and the applicant's newspaper had published it. In so far as the Government argued that the M.P. had given the interview although not obliged to do so, the Court fails to see how this factor should be construed as justifying a restriction on the applicant's right to freedom of expression. Indeed, a transparent and responsible exercise of a political mandate would normally necessitate that the local population be informed via the media by M.P.s about their public activities, if need be by way of interviews.

The Court further observes that in its case-law to date it has normally been called upon to examine whether interferences with freedom of expression were ‘necessary in a democratic society’ with reference to the substance and content of statements of fact or value judgments for which the applicants had ultimately been penalised, by way of civil or criminal law. The essential difference between all such cases examined to date and the present one is that, here, the courts punished the applicant and imposed a criminal penalty on grounds which were completely unrelated to the substance of the impugned article.

At no stage of the proceedings was it shown that either the content of what had been said by the M.P. or the form of his remarks, published verbatim by the applicant's newspaper, had been distorted in any way. There is nothing to suggest that the rendering of the interviewee's words was not accurate. Nor was it ever disputed that the published article contained his statements quoted verbatim. Despite this, the mere fact that the applicant had published the text without the authorisation required by section 14 of the Press Act automatically entailed the imposition of the criminal sanction provided for under section 49 of that Act.

Moreover, the impugned provisions applied across the board, regardless of the status of the interviewee. It was sufficient for the court to establish a failure on the applicant's part to seek and obtain authorisation. The content of the article was, in any event, establishing irrelevant for the criminal offence.

As a result, the domestic courts, when examining the criminal case against the applicant, were not required to give any thought to the relevance of the fact that the interviewed person was an M.P. with political responsibilities towards his constituents. Indeed, the courts did not have any regard either to the substance of the statements published by the applicant's newspaper or to whether they had corresponded to what had been said during the interview. This approach alone does not appear compatible with the established case-law of the Court, which consistently emphasises that protection granted to politicians against criticism is much narrower than that applicable to all other persons (see paragraph 73 above). Moreover, the Court notes that the refusal of authorisation for the publication of the interview was of a blanket character as under the impugned provisions the M.P. was not obliged to provide any grounds for his refusal.

The Court can accept that an interviewed person may be anxious that his or her actual comments are faithfully rendered and conveyed to the public. This also applies where the interviewed person is a politician. Exposure to the public eye of reckless or awkward utterances made by a politician in the context of an interview may have a negative impact on his or her further career and, indeed, their political existence.

However, the provisions applied in the present case give interviewees carte blanche to prevent a journalist from publishing any interview they regard as embarrassing or unflattering, regardless of how truthful or accurate it is. They can do so either by refusing authorisation or by unreasonably delaying the granting of authorisation. The relevant provisions do not fix any time-limit within which the authorisation is to be granted or refused. Furthermore, it cannot be excluded that their application may also result in slowing down the flow of information from the press to the public and burden journalists with additional work and costs. The Court reiterates in this context that news is a perishable commodity and to delay its publication, even for a short period, may well deprive it of all its value and interest (see, for example, Observer and Guardian, cited above, p. 30, § 60; Sunday Times v. the United Kingdom (no. 2), judgment of 26 November 1991, Series A no. 217, pp. 29 et seq., § 51; and Association Ekin v. France, no. 39288/98, § 56, ECHR 2001-VIII). Consequently, a journalist cannot in principle be required to defer publishing information on a subject of general interest without compelling reasons relating to the public interest or the protection of the rights of others (see, for example, Editions Plon, cited above, § 53, with further references).

Moreover, the legal provisions concerned in the present case could have other negative consequences prior to publication, in that they were capable of making journalists avoid putting probing questions for fear that their interlocutors might later block the publication of the entire interview by refusing to grant authorisation, or choose interlocutors known for being co-operative, to the detriment of the quality of the public debate. The Court shares the view expressed by Justice Rzepliński in his dissenting opinion (see paragraph 26 above) that these provisions were therefore capable of having a chilling effect on the exercise of the journalistic profession by going to the heart of decisions on the substance of press interviews and shares.

The Court has had regard to the Government's argument that the interference complained of was aimed at the protection of the reputation of the interviewed person. However, the Court notes that under domestic law there existed an array of available civil law instruments specifically intended for that purpose (see paragraphs 30–32 above). It also reiterates that in its examination to date of the measures in place at domestic level to protect Article 8 rights in the context of freedom of expression (and even assuming that such rights were at issue in the present case), the Court has so far accepted that ex post facto damages provide an adequate remedy for violations of Article 8 rights arising from the publication by a newspaper of private information (see Von Hannover v. Germany, no. 59320/00, §§ 72–74, ECHR 2004-VI; Armonienė v. Lithuania, no. 36919/02, §§ 45048, 25 November 2008). Moreover, the provisions of the Press Act itself afforded additional protection against inaccurate rendering of statements and judgments made in the context of an interview. Section 31 of that Act provided, at the material time, for the obligation for a newspaper to publish a disclaimer submitted by a person who wished to have inaccurate information published about him or her rectified, or a more elaborate reply if his or her personal rights had been breached by an article (paragraph 29 above). It has not been argued, let alone shown, that these instruments were generally ineffective or that in the specific circumstances of the present case recourse to them would not have offered a sufficient level of protection. In these circumstances, recourse to a criminal sanction was not, in the Court's opinion, justified.

The Court observes that the Press Act was adopted in 1984, twenty-seven years ago. It was adopted before the collapse of the communist system in Poland in 1989. Under that system, all media were subjected to preventive censorship. The Press Act 1984 was extensively amended on twelve occasions (see paragraph 29 above). However, the provisions of sections 14 and 49 of that Act, on which the applicant's conviction was based, were never subject to any amendments, in spite of the profound political and legal changes occasioned by Poland's transition to democracy. It is not for the Court to speculate about the reasons why the Polish legislature has chosen not to repeal those provisions. However, the Court cannot but note that, as 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.

It is also relevant for the assessment of the case that, in the proceedings before the Constitutional Court, the compatibility of the impugned obligation with the freedom of expression enshrined in the Polish Constitution was negatively assessed by the Ombudsman, the Speaker of Parliament and the Prosecutor General, who were all of the view that the restrictions imposed by the Press Act breached the principle of proportionality enshrined in Article 31 of the Polish Constitution of 1997. What is more, they all referred to the availability of civil law instruments to secure effective protection of personal rights (see paragraph 19 above). This remarkable unanimity of leading national legal authorities in the assessment of the provisions which had served as a legal basis for the interference concerned in the present case cannot be overlooked by the Court.

In so far as the Constitutional Court stressed that journalists were not obliged to seek authorisation (and, consequently, did not run the risk of criminal proceedings) where they chose to summarise or otherwise convey the content of statements made in the context of interviews (see paragraph 22 above), the Court is of the view that this approach was, in fact, paradoxical. The more faithfully journalists rendered the statements of interviewed persons, the more they were exposed to the risk of criminal proceedings being brought against them for failure to seek authorisation. In the same vein, it is also paradoxical that section 14 of the Press Act obliges journalists to seek authorisation only in respect of interviews recorded in a phonic or visual form whereas no such obligation is imposed where a journalist only makes notes of an interview. In any event, the Court is of the view that the mere fact that the applicant was free to paraphrase words used by the interviewed person — but chose to publish his statements verbatim and was penalised for it — does not make the criminal penalty imposed on him proportionate.

The Court concludes that the criminal proceedings brought against the applicant and the criminal sanction imposed on him, without any regard being had to the accuracy and subject-matter of the published text and notwithstanding his unquestioned diligence in ensuring that the text of the published interview corresponded to the actual statements made by the M.P., was disproportionate in the circumstances.

There has therefore been a violation of Article 10 of the Convention.