Max Mosley v. Google
Closed Expands Expression
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The District Court in Warsaw, VIII Criminal Division in Poland discontinued the criminal proceedings against a writer charged with insulting the President. In a Facebook post, the writer described the President as “a retard” (debil), and the prosecutor sought the initiation of criminal charges. The Court accepted that the writer had used an offensive word but stressed that the limit of acceptable criticism of politicians is wider than of non-public officials. It held that there is a right to criticise the actions of public authorities and found that the condition for the criminal charge – that there has been social harm – was not met.
On November 7, 2020, a well-known Polish writer and publicist, Jakub Żulczyk, posted a Facebook post stating, “Andrzej Duda, President of Poland, tweeted that he is waiting for the nomination of Joe Biden, President-elect of the United States, by the Electoral College. I am a graduate of American studies at the Jagiellonian University with a master’s degree. Admittedly, U.S. politics and the affairs of the country today are just a hobby of mine, but I have never heard of such a thing as ‘nomination by the Electoral College’ in the American electoral process. Biden won the election. He won 290 certain electoral votes, in the end, after a recount in Georgia, he will probably win 306 of them, to win, he needed 270. The president-elect in the U.S. ‘is announced’ by news agencies, there is no federal, central body or office in charge of this announcement. Everything that follows from today – counting the rest of the votes, electoral votes – is a mere formality. Joe Biden is the 46th president of the United States. Andrzej Duda is a retard.” [p. 2]
On March 22, 2021, the District Court in Warsaw, 8th Criminal Division, at the request of the Regional Prosecutor’s Office Warsaw Śródmieście-Północ, initiated proceedings against Żulczyk. He was charged with insulting the President of the Republic of Poland by calling Duda a “retard”, a criminal offense under Article 135 § 2 of the Penal Code.
Article 135 seeks to protect the life, health, and bodily integrity of the person holding the office of President of the Republic of Poland, including the dignity of the office and the good name. The insult has to be of a public nature and to reach a wide range of people. It is a crime prosecuted ex officio (without the involvement of the injured party), at the request of the public prosecutor, and carries a sentence of up to 3 years’ imprisonment.
In this case, the prosecutor sought a sentence of five months of restriction of liberty in the form of unpaid community service and that Żulczyk publish an apology on Facebook.
Judge Tomasz J. Grochowicz delivered the judgment of the District Court in Warsaw. The central issue to be decided was whether Żulczyk’s use of the term “retard” in reference to the President was a criminal offence or protected by the right to freedom of expression.
The prosecutor’s office argued that Żulczyk publicly insulted Duda by referring to him using a term commonly considered offensive. The prosecutor, Michal Marcinkowski, submitted that “[i]n this case, the accused Żulczyk used a derogatory phrase that did not refer to the president’s competence, but to his person. (…) It must be admitted that the president, like other politicians and public figures, is exposed to harsher criticism. This does not mean that it can take place in any form. Jakub Żulczyk was not charged for having insulted the president, but for having done so in such an offensive form”.
Żulczyk submitted that his post was written under the emotional impact of Duda’s post about Joe Biden’s nomination for the US presidency, and that its purpose was to draw public attention to the inaccuracy in the Polish President’s description of the US electoral process and to explain to the public the mechanisms of the American electoral process. He argued that his statements were protected by the right of citizens to critically evaluate the actions of public authorities.
The defense called as a witness Michał Rusinek, a professor at the Jagiellonian University in Kraków, to interpret, genealogically and semantically, the term “retard.” The term has two meanings: colloquial – a stupid person, and medical – a mentally ill person. Rusinek explained that in modern Polish, the term is used to denote a person’s lack of knowledge or cognitive competence. Rusinek argued that Żulczyk’s post was in the form of a satirical essay, and his use of the word retard “may constitute – also hyperbolic – a criticism of the intellectual qualities and competence of the president and a demonstration that Andrzej Duda is unfit to serve as head of state, because he either does not know the electoral procedures in the U.S., but does know them, but in the name of immediate political interest he is trying to mislead public opinion in Poland”.
The Court accepted that Żulczyk was the author of the post. In terms of Articles 1 and 2 of the Penal Code, a necessary prerequisite for qualifying an act as a crime is social harm, which must be higher than negligible. In the absence of this, proceedings are not initiated and initiated proceedings are discontinued (in terms of Article 17 § 1.3 of the Code of Criminal Procedure). The Court must assess the degree of social harmfulness under Article 115 § 2 of the Penal Code and must take into account the type and nature of the violated good, the extent of the harm caused or threatened harm, the manner and circumstances under which the act was committed, the gravity of the duties violated by the perpetrator, as well as the form of intent, the motivation of the perpetrator, the type of the violated precautionary rules and the degree of their violation.
The Court emphasized the importance of the protection of freedom of speech in public debate, which includes the freedom to express opinions, including those critical of public authorities. Conviction of the offense specified in Article 135 § 2 of the Penal Code, which involves insulting the President, must be justified by a social need higher than the protection of fundamental rights, which include freedom of expression. The Court held that when analysed holistically, Żulczyk’s post did not justify such a need.
The Court noted that, as a writer and publicist and an Americanist by training, Żulczyk was speaking on a topic in which he had expertise. Moreover, as a citizen, he had the right to criticize public authority. The Court stressed holding the office of President office entails the risk of criticism of actions in public debate.
In assessing the degree of social harm of the act, the Court also looked at the “brutalization” of language in the public debate. The Court commented that while this did not excuse Żulczyk, it is impossible not to notice changes involving the radicalization of language especially in social media.
The Court held that Żulczyk’s entry “does not focus on the insulting element – on the contrary, in its essential part, it is a legitimate assessment, the formulation of which in no way serves the intention of insult. It is not a behavior aimed solely at insulting the President and the insult itself is of a marginal nature, so it cannot cause more than negligible harm. Indeed, it is difficult, evaluating the defendant’s entry, to assume that the insulting word he used against the President of the Republic of Poland could have violated state or public security”. [p. 4]
Accordingly, the Court held that the right to criticism should not be narrowed in the case of the actions of public authorities, including the President. It noted that this aligns with the case law of European and national courts, and referred to the European Court of Human Rights case of Oberschlick v. Austria. The Court found that the European Court of Human Rights jurisprudence establishes a standard in which a broader right to criticism of their actions can be said to apply to politicians; ensuring this right is a condition of civil society and a barometer of democracy.
The Court also noted the judgment of the Court of Appeals, Second Criminal Division, dated January 17, 2013, ref. II Aka 273/12 which had held that “not every behavior that violates certain standards of culture, morality, decency can be equated with insult – a substantial insult must reach such a degree of contempt that cannot be justified and constitutes an unreasonable, malicious personal attack.” [p. 5]
The Court described the post as a critical but substantive evaluation of the President’s statement. Although it ended with an insulting term, that term could not be evaluated in isolation from the entirety of the post explaining the American electoral process.
The Court held that the provision of Article 135 § 2 of the Penal Code should not exclude the right to criticize the authorities in public debate. It stressed that the limits of permissible criticism are broader when it comes to a politician, and this is protected by the right to freedom of expression
Accordingly, the Court discontinued the proceedings against Żulczyk.
The prosecutor then filed an appeal and on September 30, 2022, the Court of Appeals in Warsaw upheld the appealed verdict.
The prosecutor then filed a cassation. It was reviewed by the Supreme Court, Criminal Chamber, on May 23, 2023. The Supreme Court dismissed the cassation and upheld the judgment of the District Court.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
By reaffirming that the limits of acceptable criticism are wider where a politician is concerned, this judgment aligns with the standards of the case law of the European Court of Human Rights and that politicians – by their social role – must therefore tolerate a higher level of criticism than ordinary citizens.
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