Defamation / Reputation
Afanasyev v. Zlotnikov
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The European Court of Human Rights (“ECHR”) found that the domestic courts of Poland failed to consider all the circumstances in which two journalists gathered and verified information before publishing a report alleging that the head of the Private Office of Poland’s Minister of Health demanded a large bribe from a pharmaceutical company in exchange for promises of favorable treatment. In particular, the domestic courts failed to take into account that the allegation of bribery was a matter of public concern and that the official was inherently subject to a wider degree of criticism than a private individual. Accordingly, the Court concluded that the judgment against the journalists interfered with their right to freedom of expression and such interference was not necessary in a democratic society. The ECHR said that while the State parties to the Convention enjoy a certain margin of appreciation in assessing the need to interfere with the right to freedom of expression it must be considered in the totality of circumstances “whether the reasons adduced by the national authorities to justify the interference were relevant and sufficient and whether the measure taken was proportionate to the legitimate aims pursued.” Specifically related to restrictions on press, the Court stressed that it “must apply the most careful scrutiny when the sanctions imposed by a national authority are capable of discouraging the participation of the press in debates over matters of legitimate public concern.”
On May 12, 2003, the Polish daily newspaper Rzeczpospolita published a report, alleging that the head of the Private Office of Poland’s Minister of Health demanded a large bribe from a pharmaceutical company in return for the placement of its manufactured drug on the list of refunded drugs within the country’s government-sponsored health care scheme. The report was investigated and prepared by two journalists of the newspaper, Andrzej Stankiewicz and Małgorzata Solecka. Presspublica sp. z o. o was the newspaper’s publishing company.
Prior to the publication of the report, the journalists sought the official’s comments about his alleged bribery demand that took place during a business meeting with the pharmaceutical company. He admitted his presence at the meeting but denied the allegation of bribery.
On May 22, 2003, the official brought a civil action in the Warsaw Regional Court against the journalists and the publisher company for violation of his personal rights under Article 23 of the Civil Code of Poland, which states “[t]he personal rights of an individual, such as, in particular, health, liberty, honour, freedom of conscience, name or pseudonym, image, secrecy of correspondence, inviolability of the home, scientific or artistic work, [as well as] inventions and improvements, shall be protected by the civil law regardless of the protection laid down in other legal provisions.” The official argued that his alleged request for a bribe was “misleading and untrue.” [para. 15] The defendants, on the other hand, contended that they acted with due diligence in gathering the information for the report and that the disclosure of the facts contained in the report was justified in the public interest.
The Warsaw Regional Court held that while the publication had infringed the plaintiff’s personal right in preserving his reputation, the journalists acted lawfully within Article 24 of the Civil Code by observing sufficient diligence in gathering and publishing the information. Subsequently, the official appealed the decision to the Warsaw Court of Appeal. The Court of Appeal overturned the judgment. Without taking into consideration the truthfulness of the facts alleged in the report, it ruled that the journalists failed to conduct a thorough investigation into the allegation of bribery, in breach of Article 23 of the Civil Code and Section 12 of the Press Act. The court ordered the defendants to publish an apology in the newspaper and to pay 1,100 euros in court fees and to reimburse the official for the litigation cost of 1,550 euros.
On April 13, 2007, the Supreme Court of Poland upheld the Court of Appeal’s ruling.
On October 29, 2007, the defendants lodged an application before the European Court of Human Rights against the government of Poland, claiming that the judicial order of suppressing the information published in the newspaper and demanding an apology violated their right to freedom of expression under Article 10 of the European Convention on Human Rights.
The main issue before the European Court of Human Rights was whether the judgment against the journalists and the publishing company (applicants) interfered with their right to freedom of expression under Article 10 of the European Convention on Human Rights and whether such interference was necessary in a democratic society, an exception recognized under paragraph 2 of Article 10.
The applicants argued that the report on the official’s request for a bribe was a matter of public concern and that they gathered the information from reliable sources before the publication. The applicants specifically noted that they initially obtained the information from the chief executive of the pharmaceutical company to which the official proposed his request for a bribe. They further disagreed with the Warsaw Court of Appeal’s determination that they did not observe special due diligence in gathering the information, namely by failing to confirm the allegation with an employee of the pharmaceutical company who was present at the meeting with the official. The applicants asserted that they did not speak to the employee because they had suspicion that he had acted for both company and the official.
On the other hand, the government argued that the journalists failed to gather all reliable information, particularly they did not question the employee present at the meeting with the official. In addition, the government noted that the domestic courts had examined the matter and found that the information at the applicants’ disposal was insufficient to make the allegation of corruption. It stressed “when the circumstances indicated a higher probability of inaccuracy in the submissions of persons who were the source of information for the journalist, a particularly meticulous verification of the truthfulness of the allegations was necessary.” [para. 58]
At the outset of the decision, the Court ruled that the judgment against the applicants amounted to an interference with their right to freedom of expression, as the report at issue was judicially scrutinized pursuant to Articles 23 and 24 of the Civil Code of Poland. The next question for the Court was whether such interference was “necessary in a democratic society.” [para. 61] According to the Court, this determination requires the finding of whether “the interference corresponded to a pressing social need.” [para. 61] While the State parties to the Convention enjoy a certain margin of appreciation in assessing the need to interfere with the right, it must be considered in totality of circumstances “whether the reasons adduced by the national authorities to justify the interference were relevant and sufficient and whether the measure taken was proportionate to the legitimate aims pursued.” [para. 61] Specifically related to restrictions on press, the Court stressed that it “must apply the most careful scrutiny when the sanctions imposed by a national authority are capable of discouraging the participation of the press in debates over matters of legitimate public concern.” [para. 64]
In applying the standards to the case, the Court first noted that the article concerned a matter of public interest because it alleged a misconduct by a high-ranking official of Poland’s Ministry of Health. And based on its jurisprudence, the Court stated that a person holding a public office “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.” [para. 66] Additionally, it recalled that “in situations where on one hand a statement of fact is made and insufficient evidence is adduced to prove it, and on the other the journalist is discussing an issue of genuine public interest, verifying whether the journalist has acted professionally and in good faith becomes paramount.” [para. 69] The Court found that the domestic courts of Poland failed to assess the applicants’ journalistic diligence in the overall context of which they gathered and verified the information. The Court specifically pointed that the courts did not take into account the fact that the journalists personally contacted several individuals within the Minister of Health, including its Deputy whose statement supported the allegation of the official’s improper conduct. According to the Court, the gathered information must have been sufficient and reliable due to the fact that the publication led the public prosecutor to open a criminal investigation into the alleged bribery.
Accordingly, the Court found that the investigation done by the applicants before the publication of their allegation” was in good faith and complied with the ordinary journalistic obligation to verify the facts from reliable sources,” and that the domestic courts failed to carefully balance the importance of the right to impart information and the necessity of protecting the reputation or rights of others. It ruled that the judgment against the applicants interfered with their right to freedom of expression and such interference was not necessary in a democratic society.
The Court ordered the government of Poland to pay pecuniary and non-pecuniary damages to the applicants.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
The European Court of Human Rights found that the domestic courts were overly vigorous in their scrutiny of journalists. This case expands expression by making clear that, if journalists adhere to the tenants of responsible journalism and report facts honestly and objectively, they will not be unduly scrutinized for publishing those facts, nor will articles based on responsible journalism be suppressed.
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