Case Summary and Outcome

The First Section of the European Court of Human Rights (ECtHR) unanimously found a violation of Article 10 (freedom of expression) in a case concerning a Polish teacher who was dismissed for maintaining a personal blog with homosexual content. The applicant, an award-winning Polish and English teacher at a secondary school in Koszalin, was disciplined in 2013 after school authorities discovered his blog on a website for homosexual men, which contained explicit written and photographic content depicting same-sex relationships. He had also brought his same-sex partner on school trips without official authorization, introducing him to others as his cousin. Despite the teacher’s immediate compliance with the principal’s request to delete the blog, he faced disciplinary proceedings that ultimately resulted in his dismissal. The ECtHR determined that while teachers hold positions of public trust where certain duties extend beyond their professional activities, the domestic authorities failed to provide “relevant and sufficient reasons” for this severe sanction, noting that the blog was legal, intended for adults, unaffiliated with the school, and not actively transmitted to students. Furthermore, the Court recognized the broader context of negative societal attitudes toward LGBTI people in Poland, concluding that the interference with the applicant’s freedom of expression neither corresponded to a pressing social need nor was proportionate to the legitimate aim of protecting students’ morals.

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Facts

The applicant, P., was a qualified teacher of Polish and English who worked at a secondary school in Koszalin, Poland, from September 1, 2007, to December 16, 2013, teaching students between fifteen and eighteen years old. Throughout his employment, he received multiple awards for his teaching excellence, including prizes for best teacher from 2008 to 2012—awarded by the school principal—as well as national competitions for best form tutor in 2010 and 2013. The school principal later acknowledged during disciplinary proceedings that since 2010, she had suspected the applicant was homosexual but had not taken issue with his sexual orientation and had considered him to be an excellent teacher. The applicant occasionally took students on school excursions as part of his professional duties. 

According to the 2001 Ordinance of the Minister of Education regarding school tourism, all participants in school trips were required to be registered with the school principal before the event, and the established practice at the applicant’s school prohibited third parties from attending such activities. Nevertheless, in June 2013, the applicant brought his same-sex partner on two separate school trips without official authorization. During one trip, his partner accompanied him to a ceremony at the Presidential Palace in Warsaw but left immediately afterward. On both occasions, the applicant introduced his partner as his cousin and did not list him as a participant in any trip records. 

From approximately April or May 2012 until July 1, 2013, the applicant maintained a personal blog on a website targeted at homosexual men, posting almost daily at times for a total of approximately one hundred entries. The blog accumulated 39,000 visitors during its existence. The content comprised photographs and diary-style text entries that primarily depicted men alone or interacting with other men in various situations, ranging from everyday activities to intimate scenarios. The photographs showed men who were dressed, partially dressed, or nude, engaged in activities such as holding hands, hugging, kissing, and in some cases, removing underwear or having sex, though none displayed sexual organs or actual sexual intercourse. Some photographs featured the applicant himself, either alone or with another man.

The blog’s written content primarily described the applicant’s daily life, emotional experiences, feelings of love and loneliness, and intimate thoughts about his partner. Several dozen passages contained explicit erotic content describing sexual acts between men. Despite the applicant’s claim that he kept the blog secret from his colleagues and students, evidence indicated that school staff read and commented on it. Furthermore, students appeared to be aware of his internet activity, with at least one student leaving a comment either on the blog or on the applicant’s Facebook page stating, “This guy… is my teacher of Polish.” During subsequent disciplinary proceedings against P., the school principal testified that she had not received complaints about the blog from students or parents, though teachers at the school had been reading it. 

On July 1, 2013, after being informed about the applicant’s blog, the school principal reprimanded him and requested that he delete it, which he did the same day. Three days later, on July 4, 2013, the principal asked the disciplinary officer for teachers to open formal proceedings against the applicant for breaching his duties under the 1982 Teachers’ Charter Act. The disciplinary officer from the Zachodniopomorski Governor’s Office initiated proceedings with the Disciplinary Commission and sought to have the applicant reprimanded for bringing an unauthorized third party on school trips and for “running a blog containing texts and images unworthy of the teaching profession.” 

During the hearing on December 16, 2013, questioning focused on these two issues, particularly the blog posts containing “profanities” and “obscene” photographs that allegedly “attested to the Applicant’s morality,” as well as offensive comments about students and colleagues. Throughout the hearing, Commission members explicitly stated that profanities were distinct from the applicant’s sexual orientation, which was not the subject of the disciplinary proceedings. The applicant admitted to breaching the rules regarding school trips and to writing the blog, describing his blogging as a form of therapy and a “foolish mistake.” He assured the Commission that the blog had been deleted and that he would not make similar publications in the future. 

Following the hearing, the Disciplinary Commission found the applicant responsible for “a breach of the dignity of the teaching profession and of the duties set out in section 6 of the Teacher’s Charter Act” and ordered his dismissal from the school. In its reasoning, the Commission stated that the applicant’s blog contained “texts of an erotic character and obscene photos” and that a teacher publishing profane comments on social media undermined the dignity of the teaching profession. However, the Commission did not assess any specific blog posts in its decision. 

The applicant appealed the decision, arguing that the sanction was disproportionately severe and that the Commission had wrongly determined he lacked morals and posed a threat to his students’ ethical education. He contended that the Commission’s decision was based on information about his “disturbed sexual orientation” (his own characterization) and that while writing the blog was reprehensible, it stemmed from his complicated personal situation, identity issues, and traumatic childhood rather than “depravity.”

On September 24, 2014, the Appellate Commission quashed the earlier decision and discontinued the disciplinary proceedings against the applicant. The Commission found no evidence that he had neglected his duties as a tutor during the trips and accepted that he had written the blog for therapeutic purposes on his psychiatrist’s recommendation to process childhood psychological trauma. However, the disciplinary officer from the Ministry of National Education appealed this decision, reiterating that the applicant had not complied with safety regulations for school trips and breached professional dignity through his blog. The officer emphasized that the issue was not the applicant’s sexual preferences but the “indecent content” of his public blog, including “erotic texts,” “obscene photographs,” “profanities,” and “comments full of profanities” referring to school staff and affairs. The officer argued that the applicant had “breached basic moral principles” by “posting on his blog entries and photographs violating good mores” and that the dismissal was an appropriate sanction.

On May 7, 2015, the Szczecin Court of Appeal reversed the Appellate Commission’s decision, dismissed the applicant’s appeal, and upheld his dismissal. The court held that by bringing an unauthorized person on school trips, the applicant neglected his duties and compromised students’ safety. Moreover, it found that “writing a blog with content (including photographs) that was profane, obscene and sexual” was unworthy of the teaching profession and violated his obligation to shape students’ moral and civic attitudes. The court quoted explicit excerpts from the applicant’s work regarding his youth and life in general, including sexual references and profanities. It noted that the applicant’s colleagues and the principal described the photographs as “pornographic” and “obscene” and the text as “very immoral,” “profane,” and “sexual.” The court concluded that the dismissal was proportionate, noting that while harmful to the applicant, it did not eliminate his career opportunities at other schools. No further appeal was available under Poland’s applicable law. 

According to statistics provided by the Government, between 2013 and 2021, Polish authorities instituted 109 sets of disciplinary proceedings against teachers for “inappropriate activity on the internet,” including blogging, Facebook posts, and messaging students. Of these cases, 96 resulted in disciplinary sanctions against the teachers concerned. The government data did not specify how many of these cases involved posts with sexual content. 

Aggrieved by the court’s decision, the applicant filed an application before the European Court of Human Rights (ECtHR or the Court) alleging a violation of Article 10 (Freedom of Expression) and Article 14 (non-discrimination) of the European Convention on Human Rights (ECHR)

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Decision Overview

Justices Ivana Jelić, Lətif Hüseynov, Gilberto Felici, and Alain Chablais delivered the majority decision for the European Court of Human Rights. Justices Krzysztof Wojtyczek, Alena Poláčková, and Péter Paczolay delivered a joint dissenting opinion.  The primary issue before the Court was whether Poland’s disciplinary action against a teacher for maintaining a blog with explicit homosexual content represented a legitimate and proportionate restriction on his freedom of expression, or whether it constituted discrimination based on his sexual orientation. For this, the ECtHR had to determine if the interference with the applicant’s expression was “prescribed by law,” pursued a “legitimate aim” (such as protecting students’ morals), and was “necessary in a democratic society.”

The applicant argued that the disciplinary proceedings against him stemmed from prejudice against people of homosexual orientation. He denied that his blog contained pornographic content or that his students had accessed it. Regarding the punishment, he contended that his dismissal effectively prevented him from resuming his teaching career, as no other school would hire him given his disciplinary record. 

The Government maintained that the interference with the applicant’s freedom of expression pursued the legitimate aim of protecting students’ morals and was proportionate. They argued that teaching is a position of public trust requiring teachers to be role models, and the applicant’s profane, obscene, erotic, and pornographic content undermined his profession’s dignity. The Government emphasized that their reaction had nothing to do with his sexual orientation and noted that by agreeing to delete the blog, the applicant had essentially condemned his own behavior. It further contended that the sanction reflected multiple violations—both the breach of safety rules on school trips and the obscene blog entries that defamed students and staff. Finally, the Government noted that the disciplinary record would be automatically expunged after three years, removing any obstacle for P. to resume his teaching career. 

Referencing the United Nations Human Rights Committee views, three non-governmental organizations (ILGA-Europe, Campaign Against Homophobia, and the Polish Society of Anti-Discrimination Law) submitted as third parties that the right to freedom of expression protects LGBT people’s right to express themselves publicly regarding their sexual or gender identity and to seek understanding for it. They cited a joint statement by various human rights experts that categorically rejected arguments claiming that banning information about sexual orientation was necessary to protect public morals. The third parties also highlighted Poland’s poor ranking in ILGA-Europe’s Rainbow Europe Index 2021 (43rd out of 49 European countries and last among EU member states), with an overall score of 13% in legal protections for LGBTI people.

The Court began by recapitulating its general principles concerning freedom of expression as outlined in Medžlis Islamske Zajednice Brčko and Others v. Bosnia and Herzegovina, wherein it established that freedom of expression constitutes an essential foundation of a democratic society, applying not only to inoffensive information but also to ideas that offend or disturb. The ECtHR held that restrictions to freedom of expression must be strictly construed with a “pressing social need.” To it, while states have a margin of appreciation in assessing such needs, the Court retains supervisory jurisdiction to determine if restrictions are proportionate and justified by “relevant and sufficient” reasons. 

The Court determined that the applicant’s dismissal from his teaching position, for running a public blog with content deemed unworthy of the teaching profession, constituted an interference with his right to freedom of expression. It found that this interference had a legal basis in Section 6 of the Teacher’s Charter Act, which obligated teachers to “shape moral attitudes” in students. The ECtHR noted that the case focused specifically on the blog’s explicit sexual content rather than its homosexual nature, acknowledging that conceptions of morality vary between societies and time periods, as established in cases like Pryanishnikov v. Russia and Müller and Others v. Switzerland. 

Without definitively ruling on the legitimacy of the aims pursued by the State, the Court proceeded to examine whether the interference was necessary in a democratic society. The ECtHR observed that while political speech enjoys strong protection, matters concerning morals generally afford states a wider margin of appreciation, as established in Mouvement raëlien Suisse v. Switzerland. However, the Court found that domestic authorities failed to adequately examine the criteria necessary before restricting the applicant’s freedom of expression, even though he acknowledged his blogging was reprehensible and did not explicitly raise freedom of expression arguments. 

The Court identified several critical omissions in the domestic authorities’ reasoning. First, they disregarded that the applicant did not actively transmit allegedly immoral content to students but merely maintained a blog unaffiliated with the school. While the blog was public and eventually traced to the applicant, his conduct did not intrude on educational policies or undermine parental rights regarding children’s moral education, unlike situations addressed in Bayev and Others v. Russia. The ECtHR emphasized that no evidence showed the disciplinary proceedings were triggered by student or parental concerns for moral integrity or safety. Additionally, authorities overlooked that the blog activity was not illegal, operated within regulations for adult content, and contained material that was no more explicit than what was commonly available to adults.

The Court acknowledged that online content creators, like artists and writers, are subject to possible limitations as provided in Article 10(2) of the ECHR, with “duties and responsibilities” that vary depending on their situation. While recognizing that teachers hold positions of public trust with authority over pupils—extending certain duties to their activities outside school as established in Vogt v. Germany—, the ECtHR emphasized the importance of context. It underscored the fact that the applicant was not employed by a religious school and did not teach religion or ethics, which might have required stricter adherence to particular moral standards (as in cases like Travaš v. Croatia and Ţîmpău v. Romania). Thus, the Court found it unreasonable to impose a heightened duty of loyalty that would bar him from expressing his sexuality in a lawful blog intended for adults.

The Court noted that while the applicant’s dismissal was not due to his sexual orientation, his blog depicted homosexual relations in a country with documented negative attitudes toward LGBTI people, according to reports from the Council of Europe’s Commissioner for Human Rights and the EU Fundamental Rights Agency. Concerning the severity of the sanction, the ECtHR observed that the dismissal was harsher than the initially sought reprimand with a warning, and authorities failed to consider the applicant’s previously clean disciplinary record. 

The Court noted that domestic authorities failed to provide “relevant and sufficient reasons” for dismissing the applicant, as his personal blogging did not threaten minors’ morals in a manner justifying the imposed sanction. Even allowing for a certain margin of appreciation, the interference with the applicant’s right to freedom of expression neither corresponded to a pressing social need nor was proportionate to the legitimate aim purportedly pursued. Therefore, the Court ruled that the interference was not “necessary in a democratic society,” constituting a violation of Article 10 of the ECHR. Having reached this conclusion, the ECtHR determined that no separate issue arose under Article 14 taken in conjunction with Article 10. 

In light of the above, the Court ordered Poland to pay the applicant €2,600 in non-pecuniary damages.

Joint Dissenting Opinion of Judges Wojtyczek, Paczolay and Poláčková

The three dissenting judges disagreed with the majority’s finding regarding an Article 10 violation. They argued that the final assessment was based on ‘erroneous factual findings’ and a problematic analysis of domestic remedies. They contested the majority’s assertion that the blog was restricted to adult readers, emphasizing that no effective mechanisms prevented minors from accessing it, and that students were “induced to actively check and read” the blog. The joint dissenting opinion also rejected the majority’s concern about a lack of demonstrated negative impacts on students, noting the “widely accepted assumption” underlying legislation restricting minors’ access to obscene content. They emphasized that some of the blog’s material was “of a very vulgar nature,” which the majority failed to address despite it being “one of the most important elements justifying the sanction” [para. 2, Dissenting opinion]

The dissenting judges noted that the disciplinary sanction legitimately aimed to protect minors and parents’ rights—“to ensure education and teaching in conformity with their own religious and philosophical convictions,”—as well as “the authority of schools and teachers”. [para. 4, Dissenting opinion] To them, since the applicant acknowledged his blogging was “reprehensible behaviour,” many issues were not disputed during the proceedings, making the majority’s approach “an unjustified interference with the system of domestic remedies.” [para. 3, Dissenting opinion] While agreeing that Article 10 applied to the case, they maintained that given the “limited effect of the sanction on the applicant’s life,” the interference with his freedom of expression was not disproportionate. The joint dissenting opinion questioned whether the outcome would have differed had the content depicted heterosexual relations rather than homosexual ones, and concluded that the majority undermined the “subsidiarity of the Convention system” by reassessing the case “as if they were in a higher domestic court.” [para. 6, Dissenting opinion]

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