Defamation / Reputation, Hate Speech, Political Expression
Awan v. Levant
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The European Court of Human Rights ruled that Polish courts violated the freedom of expression of Zenon Brzezinski, a candidate running for local elections, when he was held liable for disseminating false information. The candidate published an election booklet criticizing two local politicians, accusing them of financial mismanagement and unprofessional behavior. The politicians brought a successful legal action against Brzezinski for violating Article 72 of the Polish Local Elections Act, which prohibits the dissemination of untrue information. Brzezinski was prohibited from further disseminating the booklet and ordered to publish an apology in widely read local newspapers. The European Court unanimously ruled that Brzezinski’s punishment had a chilling effect on political debate and disproportionately interfered with his freedom of expression.
In 2006, Brzezinski was running for local elections in Częstochowa, a city in Southern Poland. As part of his campaign, he published an election booklet criticizing members of the local government. He claimed that mayor “J.S” acted as an amateur and mismanaged contracts with a water company. He accused councilor “J.K” of corruption. Brzezinski gave out the booklets to churchgoers leaving a local Sunday mass.
The mayor and the councilor sued Brzezinski and sought an order to prohibit further dissemination of the booklet under Section 72 of the Polish Local Elections Act. Under the Act, a court could issue an order banning campaign material containing false information and had to make such determination within 24 hours of receiving a complaint.
The trial was held in October 27, 2006. Brzezinski was summoned by phone at 10:30 am for a trial scheduled for 01:30 pm. He did not show up at the trial.
The court found that the booklet was malicious, harmed J.S’s and J.K’s reputation without any factual basis, and exceeded the limits of permissible campaign speech. The court ordered Brzezinski to stop the dissemination of the booklet and to publish an apology, stating that he regretted publishing untrue information that could have misled the public. He was also ordered to donate to a charity.
Brzezinski appealed, arguing that he unable to defend his legal interests because he was summoned to court on a short notice and unable to attend the trial due to medical problems. He also produced some evidence to corroborate his claims.
On January 12, 2007, the Katowice Court of Appeal upheld the lower instance judgment. The Court held that Brzezinski was properly summoned to trial and did not provide evidence that he could not attend it.
Brzezinski submitted a complaint to the European Court in 2007 claiming a violation of his right to freedom of expression guaranteed by article 10 of the European Convention on Human Rights (ECHR) and a violation of his right to a fair trial granted by article 6 of ECHR.
The European Court of Human Rights unanimously ruled for Brzensinski after applying the three-part test outlined in article 10 to determine if his rights had been disproportionately violated. The test allows restrictions on freedom of expression only if they are prescribed by law, serve a legitimate aim and are necessary in a democratic society.
The Court determined that Polish courts interfered with Brzezinski’s right to free expression when they condemned him to stop the dissemination of his electoral booklet. As for the first prong, of the three-part test, the Court held that the interference was prescribed by law since it was based on Section 72 of the Polish Local Election Act. The interference also pursued a legitimate aim of “protecting the reputation and rights of others”, in particular J.S and J.K’s rights as candidates running for local elections.
The focus of the case was thus the third-prong – whether the interference with Brzezinski’s right to freedom of expression was necessary in democratic society. The Court engaged in a balancing test. It took into account the political context of the case and reiterated the importance of protecting political speech, particularly of opposition, during elections. The Court noted that the speech in the booklet was not “vulgar or insulting” but “within the limits of exaggeration and provocation usually allowed in political debate at local level.”
Finally, the Court condemned the penalties imposed on Brzezinski. He was prohibited from publishing the election booklet, forced to publicly apologize, and to donate to a charity as fiscal punishment. The Court determined that the “cumulative application” of these sanctions likely produced a chilling effect on political speech.
Consequently, the Court ordered the Polish Government to pay damages to Brzezinski in the amount of 9,800 euros.
The Court refused to hear Brzezinski’s claim under article 6 of ECHR, the right to a fair trial, since it found a violation of article 10.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
Columbia Global Freedom of Expression Expert, Ronan Ó Fathaigh explained that although the European Court reiterated well established freedom of expression protections it failed to tackle a major issues with Section 72 of the Local Elections Act – that Polish courts had 24 hours to determine if false information has been published. Fathaigh also noted that this is the first instance of the European Court using the term “fake news,” which is a “as incredibly disappointing, given that independent reports from both the Council of Europe (here) and the European Union (here) have found that the term should not be used, as it is ‘woefully inadequate’, ‘misleading’, ‘appropriated by politicians around the world to describe news organisations whose coverage they find disagreeable’, and a ‘mechanism by which the powerful can clamp down upon, restrict, undermine and circumvent the free press’.”
Global Perspective demonstrates how the court’s decision was influenced by standards from one or many regions.
§48, 55, 62
§41, 49, 50
Case significance refers to how influential the case is and how its significance changes over time.
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