Defamation / Reputation
Hlynsdottir v. Iceland (no. 2)
Closed Expands Expression
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Marcin Kącki, a journalist at a Polish newspaper, was charged with defamation after the newspaper published an interview between Kącki and a member of a political party which included allegations of nepotism and referred to a sex scandal within the party. The Polish Courts convicted him of defamation in respect of the allegations of nepotism but not in connection with the sex scandal.
The European Court of Human Rights held that the Polish courts had failed to appropriately balance the right to freedom of expression and the interests of an individual’s reputation, and that the defamation conviction was not “necessary in a democratic society”. Accordingly, the Court held that the conviction was an unjustifiable infringement of Kącki’s right to freedom of expression under article 10 of the European Convention on Human Rights.
On December 6, 2006, the Polish daily newspaper “Gazeta Wyborcza”, published an interview between one of its journalists, Marcin Kącki, and a woman who was a member of the political party, Self-Defence of the Republic of Poland (“Samoobrona”). The interview was entitled “Payment for sex, the choice is yours” and concerned an alleged sex scandal within the party which had initially been reported on earlier in 2006.
In the interview, the woman claimed that she had began working for the party on an unpaid basis and that when she asked for payment a party member told her “I will pay if you go to bed with me”. She also claimed that a different party member offered to find her a post in a parliamentary deputy’s office in return for sexual favors. She alleged that this job had been given to the daughter of another party member, referred to as “M.C.”. Statements from all the party members mentioned in the interview except for M.C were included alongside the interview in the newspaper (para. 20), refuting the sex scandal allegations.
On November 30, 2007, M.C. lodged a private bill of indictment against Kącki demanding that he be charged with the crime of defamation. M.C. argued that the interview seemed to suggest that he had been involved in the sex scandal, and that he had been guilty of nepotism.
On March 16, 2010, the Warsaw District Court ruled the indictment partially accurate finding Kącki guilty of defamation in connection with the accusation of nepotism. The Court held that, even though Kącki had sent the transcript of the interview to the woman before publication and she had approved its content, he had neglected his professional obligations as he had failed to verify whether the job had indeed been offered to M.C.’s daughter. The Court held that there was no merit in M.C.’s claim for defamation in respect of the sex scandal because, as Kącki had published statements from the other party members which had refuted the sex scandal allegations, “the average reader should not have had the impression that M.C. was involved in the ‘sex scandal’” (para. 15).
Despite ruling the indictment partially accurate, the Court discontinued the proceedings for a probationary term of one year and only ordered Kącki to pay the equivalent of 232 euros to charity and the costs of the proceedings. Kącki appealed the decision to the Warsaw Regional Court which, on 18 June 2010, upheld the District Court’s decision. The Regional Court noted that notwithstanding a journalist’s right to freedom of expression under article 10 of the European Convention “an individual’s right to legal protection of good name and reputation should also be taken into account” (para 17).
Kącki then filed an application at the European Court of Human Rights.
The European Court of Human Rights (ECtHR) had to determine whether the interference with Kącki’s right to freedom of expression through the defamation conviction was “necessary in a democratic society” in terms of article 10 of the European Convention on Human Rights.
Kącki argued that the domestic Courts had failed to take into account that M.C. was a public figure and so greater tolerance had to be afforded to critical comments regarding him. In addition, he submitted that the Courts had not recognized that the interview was part of an open debate on a matter of public interest, and had unreasonably expected him to distance M.C. from the quotes published in the interview. He argued that there was no “pressing social need” to justify the interference with his freedom of expression and that the interference had been disproportionate as he was left with a criminal record.
The Polish government argued that Kącki had published a statement of fact without verifying its accuracy, and that the allegations of nepotism could have resulted in a loss of public confidence for M.C. The government submitted that even though the interview concerned a matter of public interest this did not exempt Kącki from his ethical duties. In addition, the government maintained that the domestic Courts had adequately balanced the different interests at stake and had acted in a manner proportional to the legitimate aims pursued. The government argued that the penalty imposed on Kącki was appropriate as it had been moderate and had corresponded to the seriousness of the injury caused by him.
The Court acknowledged that “[r]esponsible journalism requires that the journalists check the information provided to the public to a reasonable extent” (para. 52). However, the Court held that “a journalist cannot always be reasonably expected to check all the information provided in an interview” (para. 52). The Court noted that Kącki had published the statements of an interviewee, not his own, and that he had sent the comments to the interviewee before publishing so she could verify their accuracy, and so concluded that there was no reason to doubt that Kącki had acted in good faith (para. 52).
The Court highlighted that M.C. had not requested a correction or a retraction from the newspaper, had not instituted civil or criminal proceedings against the woman who gave the interview and had not instituted civil proceedings against Kącki or the newspaper before commencing with criminal proceedings.
The Court examined whether the domestic Courts’ decisions complied with the standards set by the ECtHR’s case law, including Cumpǎnǎ and Mazǎre no 33348/96 (2004), Von Hannover v. Germany (no. 2) Nos. 40660/08 and 60641/08 (2012) and Axel Springer AG v. Germany No. 39954/08 (2012). The Court concluded that the “the domestic court did not carry out a balancing exercise of the competing interests at stake seen in the context in which the disputed remarks were made” as required (para. 56). The Court accepted that the use of criminal measures in response to defamation is not considered disproportionate per se, but concluded that, in this case, the finding of criminal responsibility on part of the applicant and the resulting inclusion of his name on the National Criminal Register had been disproportionate (para. 56).
Accordingly, the Court concluded that the domestic courts had overstepped their margin of appreciation and that the domestic authorities had “failed to strike a fair balance between the relevant interests of, on the one hand, the protection of the politician’s right to maintenance of reputation and, on the other, a journalist’s right to freedom of expression, especially where issues of public interest are concerned” (para. 59). The Court held that the interference with the applicant’s right to freedom of expression had not met the standard of being “necessary in a democratic society” and accordingly held that Poland had violated Kącki’s right to freedom of expression as enshrined in article 10 (para. 59).
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
The decision expands freedom of expression by holding that journalists should not always be held responsible for the consequences of inacurracies found in statements made by others that they have reproduced in the context of the publication of an interview, and that a finding of criminal responsibility resulting in someone’s name being entered into a criminal registry can be considered a disproportionate interference with freedom of expression even if the actual penalties imposed are relatively light.
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