Content Moderation, Digital Rights, Gender Expression
Price v. New York
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The Polish Supreme Court – Disciplinary Court held that the high standards of judicial expression also apply to private electronic communications. A judge had sent abusive emails to his ex-wife and son, containing rude and derogatory remarks and the ex-wife – herself a judge – initiated proceedings before the disciplinary jurisdiction. The Court analysed the national and regional standards on privacy and the right to communicate, concluding that they must, however, be balanced with the need to ensure high standards of judicial conduct. The Court found that the judge had undermined the judicial office and so had committed a minor disciplinary offence but also found mitigating factors which justified the conclusion that the penalty be waived.
A Polish judge of a regional court complained to the Disciplinary Ombudsman of Common Court Judges, the Ministry of Justice and the National Council of Judiciary that her ex-husband, also a judge, had insulted her in various emails, and sought disciplinary proceedings against her ex-husband.
The deputy disciplinary ombudsman conducted an investigation and identified that the ex-husband: 1) used vulgar, contemptuous and insulting language in an email to his ex-wife (Sept. 13, 2013), and used vulgar language in a subsequent email to her (Oct. 9, 2014); 2) used vulgar language in emails to his son (Jan. 11, 2014 and July 30, 2014); 3) in another email to his ex-wife, he claimed without basis that she had written anonymously against him (Oct. 9, 2014); and 4) in a telephone conversation threatened a judge of a district court that he would file a complaint against her with a view to disciplinary proceedings (Oct. 14, 2013).
The deputy disciplinary ombudsman held that the ex-husband, as a judge, undermined the dignity of judicial office within the meaning of the Polish Law on the Common Court System, 2001, art. 107 § 1. This provision stated at the relevant time: “For professional offences, including clear and flagrant violation of the law and undermining the dignity of judicial office (disciplinary offences), a judge is subject to disciplinary liability”.
The judge did not deny that he had written the emails, but argued that he had written them under the influence of emotions related to his wife’s behavior and the instrumental treatment of him by his family.
The Court of the First Instance (Court of Appeal – Disciplinary Court) found the judge guilty of the disciplinary offences of vulgar and vulgar, contemptuous and insulting language in the emails to his ex-wife and son, and imposed the disciplinary penalty of a caution. However, the Court acquitted the judge on the other charges. The Court stressed the need for the judge to control his emotions and noted his refusal to apologize for the content of the emails. The Court considered the penalty of a warning to be appropriate. A finding of a minor disciplinary offence would have resulted in no penalty being imposed.
The judge and the National Council of Judiciary filed separate motions for appeal, to the Supreme Court – Disciplinary Court.
The main issue before the Court was whether the judge had undermined the dignity of judicial office and, if so, what the appropriate disciplinary penalty should be.
The judge argued that the lower court had wrongly held that his ex-wife had been entitled to print out the relevant e-mail correspondence and send it to the state authorities. He submitted that his right to the protection of the secrecy of communications and correspondence under Polish law (articles 47 and 49 of the Constitution, and article 23 of the Civil Code) and international law (article 8(2) of the European Convention on Human Rights, article 17 of the International Covenant on Civil and Political Rights, and article 7 the Charter of Fundamental Rights of the European Union) has thus been violated. The judge also argued that, in respect of the emails he sent to his ex-wife and son, the conditions for undermining the dignity of judicial office had not been met. He sought an acquittal or discontinuation of the case.
The National Council of Judiciary also called for a more lenient approach, and argued that the judge’s conduct should be classified as a minor disciplinary offense and the penalty should be waived.
The case involved a fair balance of the right to privacy and secrecy of correspondence with the interests of the state and society in having high standards of judicial ethics and propriety of the judge and the ex-wife’s own rights.
The Court looked at the right to privacy in terms of article 47 of the Polish Constitution and article 8(2) of the European Convention on Human Rights. Referring to the European Court of Human Rights case, Kucharczyk v. Poland, App. No. 72966/13 (2015), the Court observed that article 8(2) not only concerns the protection of the individual against interference by the state, but the state may also have a duty to ensure respect for private life in the sphere of relations between individuals themselves. The Court then examined the secrecy of communications, which is regulated by article 49 of the Constitution and article 159(1) of the Telecommunication Law, 2004, and confirmed that email correspondence falls within the protection of this legal framework. It also noted that article 82 of the Law of Copyright and Related Rights, 1994 – which does not require the consent of the person closest to the addressee of the correspondence for any disclosure, but only for dissemination – was also relevant in this case. The Court defined dissemination as “making available to the public by means of any medium, e.g. press, internet. The making available must be, however, of a public nature, i.e. intended for an unrestricted circle of persons”. [p. 6] The Court also noted that the secrecy of correspondence is protected by both the Civil Code, 1997 in article 267 § 1, and the Criminal Code, 1964 under articles 23 and 24.
The Court stated: “The predominantly private nature of the conflict between the divorced spouses in this case was permeated by the official elements of their relationship, arising from the fact that they were both judges. This called for particular caution in the decision to initiate disciplinary proceedings and in the judicial assessment of the disciplinary offence.” [p. 5]
The Court held that the email the judge sent to his son should not have been taken into account in the disciplinary proceedings. Under article 182 § 1 of the Code of Criminal Procedure (which is applied as appropriate in disciplinary proceedings against judges by the virtue of Pol., Law on the Common Court System, 2001, art. 128), the person closest to the accused may refuse to testify, and in this case, the son was not even asked by the disciplinary ombudsman to agree to the use of the e-mails as, given the principle of open proceedings, this could have led to the correspondence being seen by a significant number of people. Accordingly, the Court held that the failure to obtain the consent of the judge’s son made it impossible for the disciplinary ombudsman to even consider the charge, and the Court acquitted the judge on that charge.
In respect of the emails sent to the judge’s ex-wife, the Court accepted that the protection of the secrecy of communications is a personality right, but held that the ex-wife was nevertheless entitled to disclose the contents of the email, as this was precisely to protect her personality rights, such as the right to honor, respect and a peaceful life, and the honor of the judge. The Court noted that although personality rights is a private law category, the ex-wife, acting in defense of a legitimate social interest, could also apply for disciplinary proceedings.
The Court stressed the need to ensure high standards of judicial conduct and referred to the Law on the Common Court System, 2001. In terms of article 82 § 2, 2001, a judge should, in and out of the service, uphold the authority of the judge’s position and avoid anything that might bring the judge’s dignity into disrepute or undermine confidence in his or her impartiality. The requirement of judicial restraint stems from judicial ethics. With reference to previous decisions, the Court noted that this is particularly relevant where there is a risk of offending the honor and dignity of others and that the judge’s duty in all areas of life is to be an example of proper restraint, tact and culture. The Court referred to article 107 § 1, noting that the dignity of judicial office is not defined in the text of law, but, with reference to jurisprudence, pointed out that the category concerned involves being faithful to one’s judicial oath, continuous improvement of professional skills, maintenance of an unblemished character and – echoing Article 82 § 2 – upholding the authority of the judge’s position as well as avoiding anything that might bring the judge’s dignity into disrepute or undermine confidence in his or her impartiality. The Court held that undermining the dignity of judicial office relates to the performance of professional activities in the first place, however, it may also be the case with regard to the judge’s private life in “special circumstances”. [p. 9]
The Court stated: “The judge cannot be denied the right to be assertive. He or she has the right to express his or her dissatisfaction and anger; however, his or her expression on these matters must not exceed the limits set by the standard of high judicial propriety. Moreover, the content of the electronic communication must not fall below the level of epistolography, erudition and composure expected by the judicial community, especially when the e-mail is addressed to the judge. The confidentiality of correspondence cannot justify the use of vulgarities”. [p. 9]
The Court referred to a previous judgment which held that a judge may become involved, even emotionally and subjectively, in the private affairs of himself or herself and of those closest to him or her, provided that this is not accompanied by conduct incompatible with the dignity of judicial office. In the context of the present case in contrast, the Court found that the judge’s words were vulgar and degrading, which could lead to the conclusion that the dignity of judicial office was undermined. However, it found mitigating factors: the number of emails (only two, sent a few months apart), the conviction of their confidentiality and writing under the influence of emotions related to the instrumental treatment by the ex-wife and the children, “demanding only to provide money and perform service activities such as driving the daughter to the nearby school”. [p. 10] The Court also noted the former wife’s refusal to allow the children to accompany their father to their great-grandmother’s 100th birthday party or, later, to her funeral. Circumstances of this kind may have justified the judge in being upset and expressing his displeasure, but they did not excuse him from refraining from using vulgar and contemptuous words, the Court found.
Accordingly, the Court ruled that the defendant committed a minor disciplinary offence and that the penalty should be waived.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
The Court took into account the national and regional standards on privacy and the right to communicate, and the need to ensure high standards of judicial conduct – including in private electronic communications – in finding that the judge’s statements in his emails constituted a minor disciplinary offence and that there were mitigating factors justifying a lenient sentence.
Global Perspective demonstrates how the court’s decision was influenced by standards from one or many regions.
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