Dear journalists, the freedom of speech has its limits!

The European Court of Human Rights (ECHR) issued a judgment in the case of Dorota Kania v. Poland, which confirms that journalists must assume responsibility for their words and cannot hide behind the freedom of speech. Especially when they abuse it.

In the judgment handed down on 4 October 2016 (application No 44436/13), the ECHR dealt with the conflict of two values – the freedom of speech for the press versus the protection of the honor of an individual. In this context, the evaluation of journalism ethics was also important – i.e., proper journalistic accuracy and diligence in collecting and publishing press materials.

Origins: Accusations of collaboration with the communist secret police

Dorota Kania, at that time a journalist of the weekly magazine “Wprost,” published a series of articles concerning the alleged cooperation of the former rector of the University of Gdańsk, Prof. Andrzej Ceynowa, with the communist secret services and the military special services. In 2007, Prof. Andrzej Ceynowa brought a private bill of indictment, accusing the journalist and the then chief editor of “Wprost,” Stanislaw Janecki, for libel (Art. 212 of the Criminal Code). In July 2011, in the course of a lustration procedure (for the time of which the court suspended the criminal procedure), it emerged that Prof. Ceynowa had not collaborated with the communist secret police.

In 2012, the District Court in Warsaw issued a judgment in which it found the accused guilty of libel against the rector. It ordered Dorota Kania to pay a fine of PLN 3000 plus a PLN 2500 penalty assessment, and Stanislaw Janecki to pay a fine of PLN 5000 and the same amount of penalty assessment for a social purpose. The judgment was also made public.

The District Court stated that journalists should assume responsibility for their words. The Court of Appeal upheld the judgment.

Actions gains momentum: a complaint to the ECHR

Dorota Kania appealed against the judgments to the European Court of Human Rights. In her complaint, she accused the Polish courts of violation of Art. 10 of the Convention. She argued that the Polish court’s judgments violated her freedom of expression and that the published articles had been intended to protect the public interest. Also, she indicated that the sources she had relied on were trustworthy as they had been taken from the Institute of National Remembrance, and her duty as a journalist was to disclose them.

ECHR’s ruling: freedom of expression has its limits
In the statement of reasons, the ECHR reiterated that the “freedom of expression (guaranteed by Article 10 of the Convention – author’s note) constitutes one of the essential foundations of a democratic society and one of the basic conditions for its progress and for each individual’s self- fulfillment.” However, the freedom of expression cannot be unrestricted. Importantly, journalists are supposed to protect democracy e.g., by carefully verifying the materials on which they rely.

In its judgment, the ECHR described in detail the course of procedure before the Polish courts and approved their conclusion that the journalist had failed to exercise the required due diligence in her publications. The Polish courts emphasized that the journalist had had the opportunity to confront the evidence she had collected during a phone call with Prof. Ceynowa. However, she had not taken advantage of such an opportunity. Also, she had not tried to meet the rector in person before the publication of the first article of the series. Moreover, the publication of the first article took place on 2 April 2007, whereas the plaintiff gained access to the documents of the Institute of National Remembrance (INR) on 9 May 2007.

The exact same INR documents that were the plaintiff’s main evidence do not, according to the Polish courts, imply that Prof. Ceynowa collaborated with the communist secret police. The conclusions of the plaintiff were far-fetched, and her accusations groundless. The Polish courts reproached the journalist for the lack of factual basis for her conclusions, and they based their judgment on the lack of Dorota Kania’s fairness.

It is worth emphasizing that, in accordance with the case law of the Court in Strasbourg, reliance on official documents does not require, as a rule, their verification by journalists. In the case of Bladet Tromso and Stensaas v. Norway (application No 21980/93), the ECHR ruled that in the debate on issues important to the public, the press has the right to rely on the contents of official reports without having to make independent cross-checks (the same in the cases of Yordanova and Toshev v. Bulgaria – 5126/05, Colombani and others v. France – 51279/99, Selisto v. Finland –56767/00). Otherwise, the role of the press would be weakened. However, although the materials from the Institute of National Remembrance were the main evidence in the case discussed here, this did not exempt Mrs. Kania from liability, due to the fact that the materials did not confirm the allegations that she had presented in her articles. By the way, one cannot forget about the duty of an objective and critical evaluation even of official sources, especially documents created by the totalitarian security services.

The ECHR indicated in the case of Dorota Kania v. Poland two values wereput at stake: the freedom of expression, resulting from Article 10 of the Convention, and the right to respect for private and family life, resulting from Article 8 of the Convention, and a balance between them must be maintained. Everyone has the right to protect their reputation, which is part of the right to respect for private life. The court’s task is to find a consensus between the two values, which is not easy, because they are usually in conflict. As the ECHR indicated, the Polish courts in the case in question met this objective.

Therefore, the ECHR did not find any violation of Article 10 of the Convention.

This is not the first such ECHR judgment in recent times.

The judgment referred to above, establishing limits for the freedom of expression, is not an exception among the case law in Strasbourg.

In the judgment of 13 January 2015, in the case of Łozowska v. Poland (application No 62716/09), the ECHR accepted the judgments of national courts, stating that there had been no violation of Article 10 of the Convention. The journalist was convicted for an article about a former judge, in which she accused her of “unclear links with the criminal world.” In another case, Ziembiński v. Poland (application No 46712/06), the journalist accused a local governor of protecting the director of a local hospital, who was allegedly guilty of corruption practices. In its judgment of 24 July 2012, the ECHR upheld the judgment of the district court, sentencing the journalist to a fine of PLN 10 000 for libel, pointing to the seriousness of the allegation of corruption and the lack of fairness when verifying the facts he relied on.

Similar trends not only in Europe

Judgments stating that the freedom of expression must give way to other legally protected values have also been recently issued in the United States. This is even more interesting given the United States’ “love” for the freedom of expression, guaranteed by the First Amendment to the US Constitution. Their belief in the key role of the freedom of expression does not allow, in principle, to penalize even extremely negative statements, such as hate speech. Meanwhile, in two recent cases, state courts have limited the freedom of expression due to its abuse by journalists. This applies to the judgment of March 2016 in the case of Bollea (known as Hulk Hogan) v. Gawker, in which the United States District Court for the Middle District of Florida dealt with the infringement of the right to privacy by publishing a sex tape on a blog, and to the latest judgment of 4 November 2016 in the case of Eramo v. Rolling Stone, in which the jury found that the former dean of the University of Virginia had been slandered in article “A rape on Campus,” in the bi-weekly Rolling Stone magazine, which accused the dean of trying to “silence” a mass rape in the University campus.

We are planning to write a separate article on the freedom of expression “on the other side of the pond” and on recent trends in jurisprudence in this area.