Case Summary and Outcome

In a unanimous decision, the European Court of Human Rights (ECtHR) found that Poland violated the applicant’s right to freedom of expression, under Article 10 of the European Convention on Human Rights (ECHR), by convicting him (a journalist) for not publishing a rectification. The case involved Mr. Przemysław Kaperzyński, the editor-in-chief of the local newspaper Iławski Tydzień, who published an article criticizing the Iława municipality’s sewage system management. Following the article’s publication, the mayor demanded a rectification, which Kaperzyński refused. The journalist was subsequently convicted under the Press Act for failing to publish the rectification. A domestic court sentenced Mr. Kaperzyński to four months of restricted liberty, to be served as 20 hours per month of community service. This sentence was suspended for two years. The court also prohibited him from working as a journalist for two years and ordered the judgment to be publicly displayed at the Iława Municipal Office. The conviction was later upheld on appeal. The ECtHR assessed whether the criminal sanction was a justified restriction to freedom of expression. The Court held that while the interference aimed to protect the mayor’s reputation, it was unnecessary in a democratic society and disproportionate considering the public interest at stake. The Court emphasized the press’s vital role as a public watchdog and concluded that the criminal penalty imposed on Kaperzyński was excessive.

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Facts

Mr. Przemysław Kaperzyński was, at the time of the events, the editor-in-chief of the local Polish newspaper Iławski Tydzień. On 17 October 2005, the newspaper published an article co-authored by Mr. Kaperzyński entitled “Municipality in Danger; Authorities Fail to See Problem.” The article criticized the municipality of Iława for its handling of the sewage system, alleging that it posed significant public health risks. It further accused the local authorities of negligence, asserting that the sewage system required extensive investments, that there was a serious shortage of available funds, and that the municipal authorities were addressing the issues in a slow and incompetent manner.

The article claimed that the authorities prioritized saving money over preventing serious health risks and averting danger to the population. It also noted that the quality of the water was unsatisfactory, and criticized the mayor, who had been in office for two terms, for failing to adequately address these problems.

Following the publication of the article, the mayor of Iława submitted a complaint regarding its content. The opening paragraph of his letter questioned Kaperzyński’s motives and insinuated that the article was driven by the editors’s personal interests. The mayor further criticized the general tone of the article as inappropriate and cast doubt on whether the newspaper had any readership at all, suggesting it might not be worth his time to formally respond.

In his letter, the mayor requested the publication of a rectification, under sections 31 and 32 of the Press Act of 1984. These provisions enshrined the right to request the unamended publication of a rectification of untrue or inaccurate statements. Considering this, the mayor disputed the claims made in the article and provided details on the measures taken by the municipality to address the alleged issues. Specifically, the mayor emphasized that the development of the sewage network was a priority for the municipal authorities, listing several projects completed in the preceding five years. The mayor also outlined three additional projects planned for the 2007-2013 period. Additionally, they affirmed that the quality of the water was consistently monitored by the relevant authorities and referenced initiatives aimed at modernizing and improving the existing sewage and sanitary systems.

Kaperzyński, however, refused to publish the rectification or respond to the mayor’s letter. He further argued that the mayor’s letter did not meet the legal requirements for a rectification and that its publication would have infringed on his personal rights as a journalist. Consequently, criminal proceedings were initiated against him “for the offence of failure to publish a rectification or reply as prescribed by section 46 § 1 of the Press Act.” [para. 11]

On 13 December 2006, the Elbląg District Court convicted Kaperzyński. This court sentenced him “to four months’ restriction of liberty in the form of twenty hours’ community service per month and suspended the sentence for a period of two years. It further deprived him of the right to exercise the profession of journalist for a period of two years and ordered that the judgment be made public by being displayed at the Iława Municipal Office.” [para. 14]

Kaperzyński appealed the district court’s decision. However, the Elbląg Regional Court upheld it on 29 March 2007. The journalist lodged a submission before the European Court of Human Rights (ECtHR), claiming that Poland violated his freedom of expression, under Article 10 of the European Convention on Human Rights (ECHR), in light of his conviction.

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Decision Overview

The European Court of Human Rights (ECtHR) delivered a unanimous decision in this case. The central issue it analyzed was whether the criminal sanctions imposed on the applicant for not publishing a rectification letter, as required by Poland’s Press Act, violated his right to freedom of expression under Article 10 of the ECHR.

The applicant argued that the enforcement of the Press Act’s provisions, adopted in the pre-democratic political context of 1984, hindered the exercise of freedom of expression. He contended that the legal obligations imposed by the act on journalists should typically fall under professional codes of conduct rather than criminal law.

Kaperzyński further claimed that the Press Act lacked clarity regarding the circumstances under which a refusal to publish a rectification was permissible—which he believed violated the “nullum crimen sine lege” (no crime without a law) principle. The applicant contended that a newspaper’s decision to refuse the publication of a rectification fell under the purview of editorial policy and was an integral aspect of the freedom to provide information. He argued that the prerogative to implement an editorial policy was encompassed within the scope of the right to freedom of expression. Consequently, Kaperzyński claimed that ordering the newspaper to publish a rectification, as requested by the mayor, violated that freedom.

Furthermore, the applicant asserted that the mayor’s letter did not constitute a legitimate request for rectification, as it included comments that infringed upon his personal rights and failed to adequately address the alleged mismanagement referenced in the original article. Additionally, the journalist maintained that the sanctions issued by domestic courts did not meet a pressing social need and were disproportionate—resulting in significant negative personal and professional repercussions. He asserted that the restrictions against him were excessive, particularly as he had been stripped of his right to work as a journalist. Moreover, the existence of a criminal record caused the applicant “severe and ongoing challenges in finding new employment.” [para. 48]

For its part, the Government of Poland held that the restrictions were lawful under the Press Act and served the legitimate purpose of protecting the freedom of the press under Article 10 of the ECHR. It further asserted that the applicant’s refusal to publish the mayor’s rectification “had made impossible an objective debate about his role and the performance of his mandate in the development of the local sewage system and prevented the mayor from disseminating relevant factual information to the local public.” [para. 50] Poland also said that the domestic courts acted appropriately within their margin of appreciation, as the penalty imposed on the applicant was lenient and justified.

At the outset of its analysis, the ECtHR recognized the essential role that the press plays in a democratic society. While the press must respect the rights and reputation of others, its responsibility, the Court held, is to disseminate information and ideas on matters of public interest in a manner consistent with its obligations and responsibilities. This principle, the ECtHR noted, was established in various cases—such as Observer and Guardian v. the United Kingdom and Bladet Tromsø and Stensaas v. Norway, where the ECtHR highlighted the role of the press as a “public watchdog.”

The Court subsequently emphasized that safeguards for the press are essential, given the public’s right to receive information and ideas, as established in Observer and Guardian. The ECtHR noted that, without such protections, the press would be unable to fulfill its role as a “public watchdog.” It further supported its assessment by referencing the precedent set in Gawęda v. Poland.

However, the Court underscored that Article 10 of the ECHR “does not guarantee a wholly unrestricted freedom of expression even with respect to press coverage of matters of serious public concern” [para. 57]—since the aforementioned right entails duties and responsibilities too. As argued by the ECtHR in Fressoz and Roire v. France, journalists are required to act in good faith, providing accurate and reliable information in accordance with journalistic ethics. Similarly, in Goodwin v. the United Kingdom, the ECtHR held that the press’ vital role as a public watchdog may be undermined if its ability to provide accurate and reliable information is compromised.

Accordingly, the Court analyzed, through the three-part test, whether the interference with the applicant’s freedom of expression violated his rights under Article 10 of the ECHR.

The ECtHR first assessed whether the restriction to the applicant’s freedom of expression was “prescribed by law.” The Court acknowledged that it was grounded in the provisions of the Press Act, which were legally binding at the time of the applicant’s actions. Although these provisions were subsequently deemed unconstitutional by the Constitutional Court of Poland, they were in force during the relevant period.

The ECtHR then examined whether the interference pursued a legitimate aim. To it, the sanctions against the applicant aimed to protect the mayor’s reputation. This constituted a legitimate objective according to the ECHR. However, the Court rejected the government’s argument that the interference was intended to safeguard press freedom, concluding that imposing a criminal sanction on a journalist does not serve to protect, but rather undermines, press freedom.

Next, the ECtHR examined whether the interference was “necessary in a democratic society” and proportionate to the legitimate aim pursued. It also assessed whether the justifications provided by the national authorities were relevant and sufficient. In doing so, the Court noted that the applicant’s article addressed significant public health concerns related to the development and functioning of the municipal sewage system and the alleged incompetence of local authorities. The subject matter, which brought to the fore potential health risks and criticized the mayor’s handling of the situation, was of clear public interest, the Court opined. Moreover, for the ECtHR, the article, while critical, was not a personal attack but an informed critique, deserving protection under Article 10 of the ECHR.

Accordingly, the Court reiterated that under Article 10(2) of the ECHR, restrictions on political speech or debates on matters of public interest should be limited. In this regard, the ECtHR highlighted that the actions and omissions of government authorities must be open to scrutiny, not only by legislative and judicial bodies but also by the public, as affirmed in cases such as Lombardo and Others v. Malta.

While Contracting States have a certain margin of appreciation when assessing whether a pressing social need exists, the Court held it maintains a supervisory authority to determine whether the restriction is compatible with the right to freedom of expression. In the present case, the ECtHR concluded that the applicant’s article addressed a matter of public interest, and there was no sufficient justification to limit his expression. Therefore, the Court considered that national authorities failed to meet the standards required under Article 10 to restrict expression, as their actions were disproportionate and did not reflect a pressing social need.

The ECtHR recognized that, although the applicant failed to comply with certain procedural obligations under the Press Act, the severity of the punishment against him was disproportionate to the offense. On this point, the Court underscored that restrictions on speech concerning matters of public interest must be approached with caution, especially when such restrictions could deter open discussion and debate. By imposing criminal sanctions for a procedural violation—considering Kaperzyński’s article addressed a matter of public concern—domestic courts failed to adequately uphold the importance of protecting freedom of expression in a democratic society.

The ECtHR argued that the legal requirements to publish a reply or rectification, as outlined in the Press Act, could be considered a normal part of the legal framework governing the media. These obligations, the Court held, helped to ensure a balance between freedom of expression and the right to contest inaccurate information—thus contributing to a plurality of opinions. However, in this case, the Court emphasized that issuing criminal penalties for procedural violations, unrelated to the substance of the article, deserved careful scrutiny.

The ECtHR further considered that criminal penalties for procedural violations, such as the failure to publish a rectification, should not undermine freedom of expression. The Court referred to Wille v. Liechtenstein, Nikula v. Finland, and Goodwin, to argue that criminal sanctions—particularly those that prevent a journalist from practicing their profession—pose a risk of creating a “chilling effect” on public debate.

Considering this, the Court concluded that the sanctions against the applicant were disproportionate. Such harsh penalties, the ECtHR said, discouraged open debate on matters of public concern—a key component of a democratic society as held by the ECtHR in Cumpana and Mazare v. Romania.

Consequently, the Court found that Poland violated the applicant’s right to freedom of expression as protected by Article 10 of the ECHR. Thus, it ordered the respondent State to pay the applicant EUR 3,000 for non-pecuniary damages and EUR 750 for costs and expenses.

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