Case Summary and Outcome

The Polish Supreme Court confirmed a lower court’s ruling that although criticism of public figures can be harsher than that of others, such criticism must also be within certain limits. A politician had posted critical statements about another politician on his blog which had led to a claim that the statements infringed the politician’s honor. The Court said that assessing whether the limit has been crossed in a particular case is very much tied to the specific context, so the use of previous case law is of limited applicability and that there is no such thing as a catalog of words and phrases that can be applied mechanically in assessing the limits of acceptable criticism. The Court acknowledged that assessing whether there has been an illegal violation of personal interests in a given case leaves room for broad discretionary power, which limits the scope of  an appellate court overturning a lower court decision unless there were obvious errors in an earlier decision.

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Facts

On January 4, 2018, a Polish politician and member of the European Parliament, Ryszard Czarnecki, posted a blog about another Polish politician and member of the European Parliament, Róża Thun. In the blog, Czarnecki said, “[d]uring World War II we had shmaltsovniks, and today we have Róża Thun.” The term “shmaltsovnik” is used in Poland to name people who reported Jews in hiding to the Gestapo or blackmailed Jews during World War II. The statement contained several other sentences in which Czarnecki accused Thun of lacking loyalty to Poland. These statements had also appeared the day before on an online portal, as part of an interview.

Czarnecki’s statements were a reaction to Thun’s participation in German television programs devoted to analyzing the political situation in Poland. In these programs, Thun made critical comments about the party in power in Poland and said, among other things, that the party wanted to destroy democracy in Poland, take Poland out of the European Union, and that the party was systematically taking away civil liberties. She had added that the party’s leader “hates it when people in the West talk about Poland.”

Thun launched a civil lawsuit against Czarnecki, in the District Court of Warsaw, 4th Civil Division (case number IV C 520/18), accusing him of violating her personal interests, in the form of her good name and honor and individual human identity.

On August 9, 2019, the District Court of Warsaw, 4th Civil Division (case number IV C 520/18), held that Czarnecki had illegally violated Thun’s personal interests in the form of good name and honor, but that he had not violated her personal interest in the form of individual human identity. It had to determine whether there been a violation of personal interests in the case under consideration and then, if there had been, whether the violation was illegal.

The Court referred to Articles 23 and 24 of the Polish Civil Code.

Article 23 states: “Personal interests of a human being, such as in particular health, freedom, dignity, freedom of conscience, surname or pseudonym, image, the confidentiality of correspondence, inviolability of the home as well as scientific, artistic, inventive and reasoning activities shall be protected by the civil law regardless of the protection provided for by other provisions”.

Article 24 states, among other things: “A person whose personal interests are jeopardized by another person’s action may demand that the action be abandoned unless it is not illegal. In the case of actual violation, he may also demand that the person who committed the violation perform acts necessary to remove its consequences, in particular, that the latter make a statement of relevant content and in a relevant form. On the basis of the principles provided for by the Code, he may also demand pecuniary compensation or a payment of an adequate amount of money for a specified community purpose”.

The possibility of awarding an appropriate sum for a social purpose in cases of violation of personal interests is also stated in Article 448 of the Code.

The Court noted that in order to assess whether there was a violation of personal interests, it must take into account not only the individual feeling of the addressee of the statement but also the public perception of the challenged words, and so the basis for finding a violation of personal interest can not be the individual feelings of the addressee of the statement alone. Accordingly, the Court rejected the allegation of a violation of the personal interest in the form of Thun’s individual identity. Thun had argued that comparing her to shmaltsovniks attacked her sense of connection with her ancestors involved in the struggle for Poland’s independence which undermined her sense of identity. The Court held that Czarnecki’s statements did not attack these values as it did not concern Thun’s ancestors at all and referred only to her public activities. Accordingly, the Court found that the average viewer of Czarnecki’s statement had no reason to connect its content with Thun’s identity and the connection of this identity with family traditions.

The Court found that Czarnecki’s statements violated Thun’s personal interests in the form of good name and honor. It referred to the previous decisions of the Supreme Court (the judgment of October 29, 1971, II CR 455/71 and the judgment of June 13, 1980, IV CR 182/90), which had found that the violation of honor consists in attributing to a person such qualities that may degrade him or her in public opinion or expose him or her to the loss of confidence necessary for his or her profession or activity. The Court noted that although the protection of honor is guaranteed by Articles 23 and 24 of the Civil Code and also by Article 47 of the Constitution, there is a consensus in the jurisprudence that the protection of honor must be balanced with other values, including the freedom of expression guaranteed by Article 54 of the Constitution. In balancing these rights, the Court held that the comparison between Thun and a shmaltsovnik constituted a violation of her good name and honor because it suggested that in her public activities she was guided solely by the desire for private financial gain and had no regard for harm to others.

The Court assessed whether the violation was legal or illegal. It referred to the Supreme Court ruling of October 19, 1989 (II CR 419/89), which held that any violation of a personal interest should be considered illegal if there are no special circumstances justifying the violation and that those circumstances are: a) an action permitted by applicable laws, b) the exercise of a personal right, c) the consent of the injured person, d) acting in defense of a legitimate interest. The Court found that none of those circumstances were present in this case.

In noting that freedom of expression is not absolute, the Court stressed that under current Polish law, it cannot be argued that the protection of freedom of speech is of greater value than the protection of personal interests, including good name and honor. The Court identified that in determining whether the violation of personal interest was illegal it would have to assess the public debate, the place of the debate, the purpose of the publication, the content of the publication and the radicalism of the assessments made in it. It noted that a statement posted on a site that is oriented toward open debate should be judged differently from a statement posted on a site that focuses on shocking the public with extreme comments, that statements posted on a web portal or blog should be treated as such that can reach an unlimited audience and that statements made on an online blog should be treated as those that may have been thoughtfully and planned and so should be treated differently from a statement that occurred under the emotion of a discussion. The Court also acknowledged that although evaluative statements, unlike descriptive statements, cannot be subject to proof of truthfulness, according to the established line of Supreme Court judgments, such statements should be credible, should not offend, and should be aimed at achieving a specific social interest, and that, in line with jurisprudence from the European Court of Human Rights, criticism of public figures can go further than criticism of private persons, and within public figures, criticism can be more severe the more harsh formulations are used by the person criticized. It added that, in assessing illegality in this case, it was notable that Thun was a politician but also that she had not used harsh and insulting expressions in her public activities.

The Court noted that there was a “brutalization” of public debate in Poland but emphasized that this cannot be a mitigating circumstance for Czarnecki but rather another reason why his statements should not be ignored. The Court stressed that the consequences of Czarnecki’s words were real and serious, and that they had been repeated and radicalized as they sparked an online discussion, and a number of malicious jokes and comments, and contributed to Thun receiving anonymous threats, including threats to her life. The Court found that the connection between these incidents and the naming of Thun as a shmaltsovnik was undoubted, and highlighted that in this context that persons to whom the term was referred during World War II were sentenced to death by Polish “underground courts” (that is, courts operating in secret), and these punishments were carried out.

Accordingly, the Court held that Czarnecki’s violation of Thun’s good name and honor was illegal. It ordered Czarneki to make an apology, posted in places where the statements were previously posted, and to pay PLN 30,000 for social purposes.

Czarnecki appealed against the indicated decision of the District Court, arguing that the ruling violated Article 24 of the Civil Code in conjunction with Article 10 ECHR. He submitted that the Court’s finding that his speech was illegal infringed the guarantees of freedom of expression contained in Article 10.

On September 29, 2020, the Court of Appeals, 5th Civil Division dismissed the appeal (in case number V ACa 61/20.) In The Court found that the District Court’s reasoning was correct, and supplemented that Court’s reasoning. It cited the rulings of the European Court of Human Rights in Lingens v. Austria, Müller v. Switzerland, and Prager and Oberschlick v, Austria, which found that the expanded scope of permissible criticism of public figures does not mean that politicians are completely deprived of the right to protection and could be insulted with impunity. The Court also referred to the Supreme Court’s decision of March 8, 2012 (V CSK 109/11), which had found that the protection of personal interests also applies to statements posted on the Internet.

Czarnecki then lodged a cassation complaint with the Supreme Court.

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Decision Overview

The Supreme Court of the Civil Chamber delivered a judgment. The main issue that the Court considered was whether Czarnecki’s statements comparing Thun to a shmaltsovnik constituted an unlawful violation of Thun’s personal good name and honor.

Thun argued that the statement illegally violated her good name and honor, and therefore it was necessary to eliminate the effects of this violation by posting an appropriate apology and payment for social purposes. She sought the dismissal of the cassation complaint.

Czarnecki argued his statement did not constitute an illegal violation of Thun’s personal interests and that the lower courts’ rulings violated Article 24 of the Civil Code in conjunction with Article 10 of the European Convention on Human Rights. He maintained that Article 24 stipulates that the one whose personal interest has been violated may demand that the consequences of the violation be removed by an apology, but only if the violation is illegal and that Article 10 gave him the right to criticize Thun. Czarnecki argued that he had referred to Thun’s real actions, which were her statements on television programs, and that elements of the statements that constituted exaggeration, lack of restraint, or provocative nature did not deprive them of protection under the European case law. He also referred to the fact that harsher forms of criticism are permitted against politicians than against ordinary citizens and so his criticism was legal, and in terms of Article 24, there was no prerequisite to demand an apology and payment for social purposes.

The Court noted that the assessment of whether a statement falls within or exceeds the limits of acceptable criticism should always be made taking into account the specific, unique context of a given situation, and so the use of other judgments in doing so “is of little help”. [p. 6] The Court stressed the difficulty of determining whether a statement falls within the limits of acceptable criticism, noting that, “there is no simple benchmark to which one can refer, and there is no set catalog of phrases, expressions, and words that will always fit or will always fall outside the bounds of permissible criticism … there is no ‘catalog of forbidden words and phrases’.” [p. 6] It reiterated, though, that “there is no doubt that with regard to public figures – especially politicians holding office and influencing the lives of citizens – it is possible to say more, more sharply, more bluntly, to use eristic and rhetorical tools that might otherwise be considered inadmissible”, but that this expanded scope of permissible criticism does not mean the absence of any boundaries, and that the dignity of the politician must also be protected. [p. 6] The Court added that, in assessing whether a statement exceeds the limits of permissible criticism, it is necessary to take into account such aspects as the context of the statement, its reasons and purpose, the type of statement, the scope of meaning, individual and public reception – and that whether a particular statement exceeds the limits of permissible criticism (and therefore whether it is illegal) leaves room for judicial discretion

In assessing the nature of the review in this case, the Court stressed that the question should be first and foremost whether the lower court’s ruling was based on a multifaceted assessment and with respect to basic standards of adjudication. It stated that “[i]nterference by the Supreme Court is possible only in the case of a clear deviation from established judicial practice, a manifest violation of the principles of life experience or logic”. [p. 7] The Court held that the courts of earlier instances made a fair, multi-faceted assessment of the situation, took into account the European case law, and the Supreme Court judgments, and they had also addressed the need for extended criticism of public figures. The Court accepted that Article 24 of the Civil Code had been interpreted in the context of Article 10 of the European Convention in this case.

Accordingly, the Court dismissed the cassation appeal, thus upholding the ruling that Czarnecki had illegally violated Tuhn’s personal interests and that he must post an appropriate apology and pay the indicated amount of money for social purposes.

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