Defamation / Reputation
Johnson v. Steele
Closed Expands Expression
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The European Court of Human Rights considered a claim by two lawyers that the Polish courts failed to protect their rights to respect for their private life and reputation by refusing to grant an order against a newspaper for the removal of an article from its website, damages and for publication of a written apology. The lawyers sought such an order two years after they successfully sued the same newspaper for the same article in their print edition. The European Court of Human Rights found no violation of the lawyers’ rights as the Polish courts struck a proper balance between the right to freedom of expression and the right to respect for private life and reputation, with particular regard being had to the view that it is not for the courts to remove from the public domain all traces of publications.
Two journalists from a daily newspaper, Rzeczpospolita, published an article in print and online alleging that two named lawyers were involved in questionable business dealings with a number of Polish politicians. The article specifically stated that the lawyers unlawfully gained substantial benefits at the expense of the public in their capacity as liquidators of State-owned companies. Subsequent to this publication, the two lawyers brought a defamation claim against the journalists before the Warsaw Regional Court for publishing the article in the print version of their newspaper.
In May 2002, the Warsaw Regional Court found the journalists liable for having failed to take necessary steps to verify the allegations contained in the print article, and ordered the journalists and the editor-in-chief to jointly pay PLN 30,000 to a charity and to publish an apology in the printed newspaper.
Subsequently, in July 2004, the same lawyers brought another defamation lawsuit against the newspaper after having found out that the impugned article remained accessible on the newspaper’s website, and that it was also easily retrieved on the Google search engine. They argued that the article’s continued presence on the Internet had breached their rights in the same way as the article in the print newspaper had. The lawyers sought further damages, as well as an order requiring the journalists to take down the article from the newspaper’s website and to publish a written apology for their rights having been breached by the article’s continued presence on the Internet.
The Warsaw Regional Court refused the remedies sought by the lawyers, stating that the removal of the article lacked any practical purpose and would amount to censorship and rewriting history. The Regional Court noted that the lawyers had already received an apology and compensation for the article, and that the court would have been more open to a request for a remedy of a footnote or link on the online article that informed the reader of the first instance judgment. Subsequently, in July 2006, the Warsaw Court of Appeal dismissed the lawyers’ appeal, holding that they could not lodge a new claim based on factual circumstances which had already existed prior to the judgment in the first proceedings. One of the lawyers subsequently filed a cassation appeal before the Supreme Court, which was also dismissed.
Both lawyers filed an application to the European Court of Human Rights, alleging that the dismissal of the civil claim relating to the online article violated their rights to respect for their private life and reputation under Article 8 of the Convention.
The lawyers argued before the European Court of Human Rights (Court) that the continued presence of the defamatory article on the newspaper’s website violated their right to respect for their private life and reputation, and that the domestic courts failed to apply the law in such a way as to afford them effective protection of this right. The Government of Poland, on the other hand, submitted that the damage caused by the article had effectively been redressed by the outcome of the first proceedings. It further contended that, because the online publication of the article took place simultaneously to the print version, the article’s continued presence after the first set of proceedings could not give rise to a separate claim. The government also stated that a ruling in favor of the lawyers would create a chilling effect on the press by allowing anyone to bring an action whenever contested material is found online, regardless of the date on which the material had been originally published on the relevant website.
The Court first explained that the primary purpose of the right to respect for private life under Article 8 of the Convention is to “protect the individual against arbitrary interference by public authorities.” [para. 53] Nonetheless, it further elaborated that Article 8 of the Convention can also include positive obligations on a State to secure the respect for private life in regard to relations between individuals, including the provision of a regulatory framework for the protection of individual rights. However, the Court reasoned that there is a wide margin of appreciation for States to determine what steps to adopt to ensure compliance with this provision. The Court also highlighted the balance that needs to be struck between the right to respect for private life and the right to freedom of expression, both of which require equal respect. The Court went on to note that Internet archives, including those maintained by the press, are protected by the right to freedom of expression under Article 10 of the Convention. According to the Court, “while the primary function of the press in a democracy is to act as a ‘public watchdog,’ it has a valuable secondary role in maintaining and making available to the public archives containing news which has previously been reported.” [para. 59]
The Court noted that the first set of proceedings before the Polish courts did not create a “legitimate expectation” that the article would be removed from the newspaper’s website, as the lawyers had not made claims during those proceedings regarding the presence of the article on the Internet. [para. 61] The Court also took into account that, as the online article had been published simultaneously with the print version, the second case brought by the lawyers concerned the same factual circumstances as the first case. Moreover, no arguments had been raised before the courts justifying the failure of the two lawyers to ensure that the scope of the first defamation claim included the presence of the article online. The Court also noted, in this regard, that the domestic laws did not prevent the lawyers from bringing fresh claims regarding the online article and that there was a domestic legal framework in place to protect the lawyers’ rights under Article 8.
The Court also accepted the reasoning of the Warsaw Regional Court that “it is not the role of judicial authorities to engage in rewriting history by ordering the removal from the public domain of all traces of publications which have in the past been found, by final judicial decisions, to amount to unjustified attacks on individual reputations.” [para. 65] The Court also deemed it noteworthy that the Warsaw Regional Court opined that a desirable remedy would be an insertion of a comment on the website, informing the public of the outcome of the civil proceedings, yet the lawyers failed to submit a specific request for such a remedy during the second proceedings.
On the basis of the foregoing analysis, the Court did not find a violation of Article 8 of the Convention, and concluded that the remedies sought by the lawyers in the second proceedings would have amounted to a disproportionate limitation on the right to freedom of expression for the sake of protecting the right to respect for private life and reputation.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
The decision expands freedom of expression as the European Court of Human Rights emphasized the protection that should be afforded to Internet archives maintained by the press. Moreover, the Court stated that it will usually be sufficient for defamatory articles archived online to include notices that the article has been subject to defamation proceedings, and that it is not for the courts to remove all traces of articles from the public domain.
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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