Defamation / Reputation, Digital Rights, Political Expression, Press Freedom, Privacy, Data Protection and Retention
Standard Verlagsgesellschaft mbH v. Austria (no. 3)
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The Polish Supreme Court – Disciplinary Chamber found that a judge did not anticipate that an explicit statement on Twitter would reverberate in the public discourse when he should have done so. The judge had compared a well-known politician to Adolf Hitler, using a judges’ association’s Twitter account. The Court emphasized that the tweet had a wider impact than just the profile’s followers because of the ability of social network to copy, forward or share a particular message. The Court also held that in the case of a judge, freedom of expression is subject to additional, specific restrictions, which also apply to activities outside a courtroom. The Court found that the tweet caused general damage to the image of judges and compromised their impartiality, and the judge had therefore undermined the dignity of his office and committed a disciplinary offense, and the Court imposed a disciplinary penalty of caution.
On September 23, 2016, a regional court judge and vice-president of the Warsaw branch of the judges’ association “Iustitia”, published a post on the Warsaw branch of Iustitia’s Twitter account. The post stated: “Like the Fűhrer…. He also sacrificed everything for the nation. Ein Volk, ein Reich, ein Fuhrer. It’s not even funny anymore” and was a comment on a politician’s remark about why another politician (Jarosław Kaczyński, leader of the political bloc that has been in power in Poland since 2015) did not start a family.
On March 22, 2017, the Deputy Disciplinary Ombudsman of the Court of Appeal filed an application for disciplinary proceedings against the judge on the grounds that he had allegedly undermined the dignity of his office and thus committed a disciplinary offense, as provided by article 107 § 1 of the Polish Law on the Common Court System, 2001. The provision stated: “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 court of first instance (Court of Appeal – Disciplinary Court) found that the act in question was unintentional. That Court referred to art. 17 § 1 point 3 of the Code of Criminal Procedure, 1997, which is applied as appropriate in disciplinary cases of judges by the virtue of article 128 of the Law on the Common Court System, 2001, and discontinued the proceedings, finding that the social noxiousness of the act was insignificant.
The Court of Appeal – Disciplinary Court reopened the case and this time found the judge guilty of the alleged disciplinary offense under article. 107 § 1, imposing the disciplinary penalty of caution under article 109 § 1 point 1 of the Law on the Common Court System, 2001. A dissenting opinion was submitted to the judgment, which would have classified the judge’s conduct as a minor offense and that the penalty should be waived in terms of art. 109 § 5 of the Law on the Common Court System.
The judge and the Minister of Justice both filed motions for appeal. As a result of the appeals, the case went to the Supreme Court – Disciplinary Chamber.
NOTE: The Supreme Court – Disciplinary Chamber succeeded the Supreme Court – Disciplinary Court in connection with the Polish constitutional crisis controversy.
The central issue for the Court’s determination was, in the specific context of social media posting, the general right of freedom of expression with specific restrictions on judges. It then had to determine whether the judge undermined the dignity of his office and committed a disciplinary offense and, if so, what the appropriate disciplinary penalty should be.
The judge relied on the minority decision in the lower court which proposed waiving the penalty based on Article 109 § 5.
The Minister of Justice sought the disciplinary penalty of reprimand (which is one level above the penalty of caution). The Minister of Justice submitted that the lower court’s penalty was disproportionately lenient because it had failed to take into account the seriousness of the misconduct, its harmfulness to the administration of justice, the preventive purpose of the disciplinary penalty and the degree of the judge’s fault.
As disciplinary proceedings in Poland closely resemble criminal proceedings, the Court examined whether the judge’s act was intentional in the criminal sense. The Court accepted that the act of the judge in writing the post was intentional, but it was unintentional as regards the social impact of the message in the public sphere, as demonstrated, among other things, by his behavior after the act. The Court found that the judge’s act was of a hybrid intentional/unintentional nature, but that, the act should ultimately be treated as intentional. The Court noted that the use of social media requires a user to accept the rules and regulations of a particular service, which is a necessary condition for creating an account.
The Court emphasized that “the message made by the [judge], did not have an effect only on the original audience, the so-called ‘profile’s followers’, but had a wider scope of influence. This is reflected primarily in the aspect of the so-called ‘Internet’s capacity for self-reproduction’, since users of the social network can copy a given message, forward or share it”. [p. 7] The Court noted a number of circumstances justifying the assumption that the judge was aware that he should avoid behavior that could undermine confidence in his impartiality or otherwise bring the dignity of the judiciary into disrepute: he is an experienced lawyer, active in the judges’ association and experienced in media relations; he had compared the living politician, a person in the public eye, to one of the greatest criminals in world history; he did not anticipate, although he should have, that his explicit statement would reverberate in the public discourse; and his post and its exposure damaged the prestige of the judiciary and created the image of judges as being on one side of a political dispute. The Court also found that the second post showed that the judge did not understand the meaning and consequences of the first post, although he should have, and noted that the fact that the judge did not post from his private account but from an institutional one was also relevant. It stated that writing about politicians, publicly expressing political sympathies or antipathies, and doing so in such an expressive manner is considered a threat to judge’s impartiality and undermines the dignity of judicial office. Accordingly, the Court found that the post brought the judge’s impartiality into question.
The Court acknowledged that article 54 of the Constitution states “the freedom to express opinions, to acquire and to disseminate information shall be ensured to everyone”, and that this extends to judges. However, article 178(1) of the Constitution concerns judges’ independence as it states “Judges, within the exercise of their office, shall be independent and subject only to the Constitution and statutes”, and the Court commented that judicial independence requires creating a situation that protects judges from pressure. The Court commented on the balance between freedom of expression and judicial independence: “In the case of a judge, freedom of speech is limited by additional requirements arising from his special status. In and out of office, a judge should be apolitical, independent of the influence of political factors, in particular of political parties, which does not mean that he or she may not have opinions on political, economic, social and religious issues. The essence of the requirements for judges in this regard comes down to the manner, form and place of presenting these views”. [p. 9-10] The Court held that, in the present case, the judge’s statement did not meet these requirements and exceeded the limits of the constitutionally guaranteed freedom of speech; it meant the judge lost the attribute of political neutrality which consequently undermined the dignity of judicial office and led to a disciplinary offense under article 107 § 1.
In looking at the penalty, the Chamber disagreed that the lower court’s penalty should be increased. It accepted that the judge had violated values of great importance, damaging the prestige of the Polish judiciary and the interests of justice, but recognized that the judge had deleted the post, apologized and clarified that the comment was not a position of the judges association “Iustitia”, but his private opinion, and had resigned from membership in the association. The Court commented that the judge had a good reputation and that the post was incidential to this.
The Court overturned the verdict and remanded the case to the court of the first instance, finding that the lower court’s conclusion that the judge’s act was insignificant in terms of the social noxiousness was wrong. The Court also found that the lower court’s finding that the post had been unintentional was not convincing.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
In Poland, the discussion about how far judges’ use of social media should be restricted is taking place against the background of constitutional crisis, and the impact of this judgment is weakened by the controversy over the unconstitutionality of the Disciplinary Chamber of the Supreme Court.
The facts of the case were widely reported in the Polish media and sparked the discussion within the judicial community. While the case was pending, the Code of Judicial Ethics was amended. According to the newly added § 23, “a judge should use social media with restraint”.
Global Perspective demonstrates how the court’s decision was influenced by standards from one or many regions.
Case significance refers to how influential the case is and how its significance changes over time.
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