Journalists and publishing companies
II. RELEVANT DOMESTIC LAW 15. Article 23 of the Civil Code contains a non-exhaustive list of the rights known as “personal rights” ( dobra osobiste ). This provision states : “The personal rights of an individual, such as, in particular, health, liberty, reputation ( cześć ), freedom of conscience, name or pseudonym, image, secrecy of correspondence, inviolability of the home, scientific or artistic work, [as well as] inventions and improvements shall be protected by the civil law regardless of the protection laid down in other legal provisions.” 16. Article 24 of the Civil Code provides for ways of redressing infringements of personal rights. According to that provision, a person facing the danger of an infringement may demand that the prospective perpetrator refrain from the wrongful activity, unless it is not unlawful. Where an infringement has taken place, the person affected may, inter alia, request that the wrongdoer make a relevant statement in an appropriate form, or claim just satisfaction from him/her. If an infringement of a personal right causes financial loss, the person concerned may seek damages. THE LAW I. ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION 17. The applicants complained of a breach of Article 10 of the Convention, which reads as follows: “1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises. 2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.” 18. The Government contested that argument. A. Admissibility 19. The Court notes that the application is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. B. Merits 1. Arguments of the parties 20. The applicants submitted that the interference with their right to freedom of expression had not been necessary in a democratic society as it had not been justified by a pressing social need. They maintained that what was at stake in the present case was not purely commercial interests but participation in a general debate. In such cases the existence of particularly strong reasons for restricting the freedom of the press in a democratic society was necessary and the national margin of appreciation was limited. 21. The applicants argued that the cartoon in question had to be examined in the full context in which it had been published. It was one of two cartoons referring to the advertising campaign run by Star Foods and was accompanied by the heading “Polish children shocked by crisps advertisement ... ” and a clear indication that the details could be found in the article on the second page. The applicants stressed that the slogan “ Reksio is a murderer”, on which they had based the cartoon in question, had been only one example – of a mild nature in comparison to others – of highly inappropriate phrases which had been used in the campaign directed at children. Others alluded to sexual behaviour and alcohol drinking or were of a racist and chauvinistic nature. Examples of other slogans included: “I ’ m pretty but not easy (“ Jestem ładna ale nie łatwa ”), “ Where are the panties?” (“ Gdzie są majtki ?”), “You fool! I multiply with ease” ( Ty baranie !, łatwo się rozmnażam !”), “Entertain me” (“ Rozerwij mnie ”), “Stick with me” (“ Przyklej się ”), “I can ’ t on Saturday” (“ W sobote nie mogę ”), “Drink Your Highness” (“ Pij Waść !”), “ Don ’ t drink alone (to the mirror)” (“ Nie pij do lustra ”), “100 years behind Blacks” (“ Sto lat za murzynami ”; meaning to be backward), ”Poles – go farming” (“ Polacy na pole ”), “People to Zoo” (“ Ludzie do Zoo ”). The inappropriateness of such a campaign had been clearly a matter of public interest and the subject had been raised by some newspapers. Thus the applicants had been justified in joining this debate. 22. The applicants submitted that the cartoon had been a satirical commentary on the article and disagreed that it had obviously attacked the good name of the product. They maintained that they had not been interested in criticising the quality of the product. Ultimately, the use of such wording was a consequence of employing a simplified and satirical form of expression as the publication had been addressed to children. Admittedly, they had used provocative and inelegant language and the journalistic form had been exaggerated; nevertheless, the cartoon remained within the limits of acceptable criticism which should be allowed in a democratic society. 23. The applicants also considered that the plaintiff company had not incurred any material damage, and even if the good name of the company had suffered it had been more as a consequence of the ill- considered advertising campaign than their publication. The applicants concluded that the reasons adduced by the domestic authorities had not been relevant or sufficient to show that the resulting judicial decision had been necessary in a democratic society. The domestic courts had failed to achieve a balance between the two interests at stake – that of the freedom of the press and protection of the reputation of the company. 24. The Government admitted that the penalty imposed on the applicants had amounted to an “interference” with their right to freedom of expression. However, they submitted that the interference was “prescribed by law” and pursued a legitimate aim as it was intended to protect the reputation and rights of others. 25. The Government argued that the applicants had overstepped the boundaries of what is protected by Article 10 and breached the plaintiff company ’ s personal rights. The domestic courts ’ reaction was thus legitimate and necessary in a democratic society as they were responding to a “pressing social need” to protect the rights of Star Foods. Moreover, the courts had fairly assessed the relevant facts and ordered a moderate penalty. 26. The Government submitted that while the text published by the applicants concerned the advertising campaign, the cartoon on the front page of the magazine referred exclusively to the product of Star Foods. The applicants, in the cartoon under consideration, had not directed their exaggerated criticism at the advertising campaign but at the product itself clearly stating that crisps produced by Star Foods were “ muck”. They considered that the cartoon sent an obvious message to the readers – children – “that they should keep away from the products referred to in such critical and derogatory language”. The applicants had discredited the potato crisps produced by the company without providing any valid reason for doing so and had failed to provide any factual basis which could support their value judgment regarding the product. 27. The Government concluded that the interference complained of had been proportionate to the legitimate aim pursued and thus necessary in a democratic society to protect the reputation of others. They submitted that there had been no violation of Article 10 of the Convention. 2. The Court ’ s assessment (a) General principles 28. The Court reiterates that freedom of expression, as secured in paragraph 1 of Article 10, 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-fulfilment. Subject to paragraph 2, it is applicable not only to “information” or “ideas” that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb. Such are the demands of that pluralism, tolerance and broadmindedness without which there is no “democratic society” (see, among many other authorities, Oberschlick v. Austria (no. 1), judgment of 23 May 1991, Series A no. 204, § 57, and Nilsen and Johnsen v. Norway [GC], no. 23118/93, § 43, ECHR 1999 ‑ VIII ). 29. There is little scope under Article 10 § 2 of the Convention for restrictions on political speech or on debate on questions of public interest (see Sürek v. Turkey (no. 1) [GC], no. 26682/95, § 61, ECHR 1999-IV). No doubt Article 10 § 2 enables the reputation of others – that is to say, of all individuals – to be protected; but the requirements of such protection have to be weighed in relation to the interests of open discussion of political issues (see Lingens v. Austria, cited above, § 42). 30. The pre-eminent role of the press in a State governed by the rule of law must not be forgotten. Although it must not overstep various bounds set, inter alia, for the prevention of disorder and the protection of the reputation of others, it is nevertheless incumbent on it to impart information and ideas on political questions and on other matters of public interest. Freedom of the press affords the public one of the best means of discovering and forming an opinion of the ideas and attitudes of their political leaders (see Castells v. Spain, judgment of 23 April 1992, Series A no. 236, § 43). Journalistic freedom also covers possible recourse to a degree of exaggeration, or even provocation (see Prager and Oberschlick v. Austria, judgment of 26 April 1995, Series A no. 313, p. 19, § 38). 31. Although freedom of expression may be subject to exceptions they “must be narrowly interpreted” and the necessity for any restrictions “ must be convincingly established” (see the above-mentioned Observer and Guardian judgment, p. 30, § 59). Admittedly, it is in the first place for the national authorities to assess whether there is a “pressing social need” for the restriction and, in making their assessment, they enjoy a certain margin of appreciation. In cases concerning the press, the national margin of appreciation is circumscribed by the interest of democratic society in ensuring and maintaining a free press. Similarly, that interest will weigh heavily in the balance in determining, as must be done under paragraph 2 of Article 10, whether the restriction was proportionate to the legitimate aim pursued (see Worm v. Austria, judgment of 29 August 1997, Reports 1997 ‑ V, p. 1551, § 47, and Feldek v. Slovakia, no. 29032/95, § 78, ECHR 2001 ‑ VIII ). 32. One factor of particular importance is the distinction between statements of fact and value judgments. While the existence of facts can be demonstrated, the truth of value judgments is not susceptible of proof. A requirement to prove the truth of a value judgment is impossible to fulfil and infringes freedom of opinion itself, which is a fundamental part of the right secured by Article 10. However, even where a statement amounts to a value judgment, the proportionality of an interference may depend on whether there exists a sufficient factual basis for the impugned statement, since even a value judgment may be excessive where there is no factual basis to support it (see Turhan v. Turkey, no. 48176/99, § 24, 19 May 2005, and Jerusalem v. Austria, no. 26958/95, § 43, ECHR 2001-II). 33. The Court ’ s task in exercising its supervisory function is not to take the place of the national authorities but rather to review under Article 10 the decisions they have taken pursuant to their power of appreciation. In so doing, the Court must look at the “interference” complained of in the light of the case as a whole and determine whether the reasons adduced by the national authorities to justify it are “ relevant and sufficient”. In so doing, the Court has to satisfy itself that the national authorities applied standards which were in conformity with the principles embodied in Article 10 and, moreover, that they based their decisions on an acceptable assessment of the relevant facts (see Vogt v. Germany, judgment of 26 September 1995, Series A no. 323, pp. 25-26, § 52, and Jerusalem v. Austria, cited above, § 33). (b) Application of the general principles to the present case 34. The Court notes that it is undisputed that the civil proceedings against the applicants amounted to an “interference” with the exercise of their right to freedom of expression. The Court also finds, and the parties agreed on this point, that the interference complained of was prescribed by law, namely Articles 23 and 24 of the Civil Code, and was intended to pursue a legitimate aim referred to in Article 10 § 2 of the Convention, namely to protect “the reputation or rights of others”. Thus the only point at issue is whether the interference was “necessary in a democratic society” to achieve such aims. 35. At the outset the Court notes that the plaintiff in the present case was a private company which has a right to defend itself against defamatory allegations. In addition to the public interest in open debate about business practices, there is a competing interest in protecting the commercial success and viability of companies, for the benefit of shareholders and employees, but also for the wider economic good. The State therefore enjoys a margin of appreciation as to the means it provides under domestic law to enable a company to challenge the truth, and limit the damage, of allegations which risk harming its reputation (see Steel and Morris v. the United Kingdom, no. 68416/01, § 94, ECHR 2005 -II ). 36. However, the Court considers that the facts of the case differ substantially from the Steel and Morris case cited above, which concerned serious defamatory allegations against McDonalds. The applicants in the instant case had published in a magazine addressed to children two cartoons accompanied by an article about an advertising campaign launched by the company producing crisps. The domestic courts found that they had breached the company ’ s personal rights by employing in one of the cartoons the word “muck” which had been considered as aimed at discrediting, without justification, the product of Star Foods. 37. The Court firstly notes that, in the domestic proceedings, and in their submissions before the Court, the applicants argued that the publication had contributed to a public debate on the question of the ill- considered and harmful advertising campaign conducted by Star Foods. The Court considers that the domestic courts did not give sufficient attention to the applicants ’ argument that the satirical cartoon had been a riposte to, in the applicants ’ view, an unacceptable advertising campaign conducted by Star Foods and targeted at young children. The campaign used slogans referring not only to the Reksio character, but also to sexual and cultural behaviour, in a manner scarcely appropriate for children – the intended market segment. This clearly raises issues which are of interest and importance for the public. The applicants ’ publication therefore concerned a sphere in which restrictions on freedom of expression are to be strictly construed. Accordingly, the Court must exercise caution when the measures taken by the national authorities are such as to dissuade the press from taking part in the discussion of matters of public interest (see Standard Verlags GmbH v. Austria, no. 13071/03, § 49, 2 November 2006 ). 38. Secondly, the Court considers that the subject of the instant case is not a defamatory statement of fact but a value judgment – as submitted by the Government. Moreover, the publication in question constituted a satirical denouncement of the company and its advertising campaign in the form of a cartoon. The Court observes that the cartoon in question was accompanied by a large heading referring to “a shocking advertising campaign” and an article on the second page reporting on the Star Foods campaign. The cartoon itself had been obviously inspired by the company ’ s advertising campaign as it used the Reksio character and the slogan which was to be found in the packets of crisps. Taking the above facts into account the Court finds that the applicants ’ aim was not primarily to denigrate in the minds of readers the quality of the crisps but to raise awareness of the type of slogans used by the plaintiff company and the unacceptability of such tactics to generate sales. 39. The Court finally considers that the domestic courts failed to have regard to the fact that the press had a duty to impart information and ideas on matters of public interest and in so doing to have possible recourse to a degree of exaggeration or even provocation, or in other words to make somewhat immoderate statements (see Mamère v. France, no. 12697/03, § 25, ECHR 2006-..., and Dąbrowski v. Poland, no. 18235/02, § 35, 19 December 2006 ). The wording employed by the applicants had been exaggerated; however, they were reacting to slogans used in the plaintiff ’ s advertising campaign which also displayed a lack of sensitivity and understanding for the age and vulnerability of the intended consumers of their product, namely children. The Court thus considers that the style of the applicants ’ expression was motivated by the type of slogans to which they were reacting and, taking into account its context, did not overstep the boundaries permissible to a free press. In sum, the Court is of the opinion that the reasons adduced by the domestic courts cannot be regarded as relevant and sufficient to justify the interference at issue. 40. Regard being had to the above considerations and in particular to the interest of a democratic society in ensuring and maintaining the freedom of the press on subjects of public interest, the Court concludes that the authorities ’ reaction towards the applicants ’ satirical cartoon was disproportionate to the legitimate aim pursued and, accordingly, was not “necessary in a democratic society” “for the protection of the rights of others”. There has accordingly been a violation of Article 10 of the Convention. II. APPLICATION OF ARTICLE 41 OF THE CONVENTION 41. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 42. The first applicant claimed 24,000 Polish zlotys (PLN), equivalent to 7,200 euros (EUR) at the date on which the claims were submitted, in respect of pecuniary damage. This sum represented PLN 2,500 and PLN 11,500 paid by the applicants to the plaintiff as reimbursement of the costs of the proceedings and PLN 10,000 paid to a charity - as ordered by the domestic courts. The first applicant further claimed interest due on this amount. As regards non-pecuniary damage, the first applicant claimed EUR 10,000 as compensation for damage caused to his good name as a reliable publisher given the publicly made allegations that he lacked professionalism and diligence. 43. The Government submitted that the final judgment in this case was delivered on 21 March 2001 and the State could not be held responsible for paying interest during a subsequent period of examination of the case by the Court. With regard to non-pecuniary damage, the Government argued that the sum claimed by the applicant was excessive. They invited the Court to rule that the finding of a violation constituted in itself sufficient just satisfaction for the non-pecuniary damage sustained by the applicant. 44. The Court finds that in the circumstances of the case there is a causal link between the violation found and the alleged pecuniary damage as the first applicant referred to the amount which he was ordered to pay by the domestic courts (see Busuioc v. Moldova, no. 61513/00, § 101, 21 December 2004 and Kulis, cited above, § 59 ). The Court awards the first applicant the sum claimed in full, that is EUR 7 ,200. 45. The Court also accepts that the first applicant also suffered non ‑ pecuniary damage which is not sufficiently compensated by the finding of a violation of the Convention. Making its assessment on an equitable basis, the Court awards the first applicant EUR 3 ,000 under this head. B. Costs and expenses 46. The first applicant also claimed PLN 6,270, equivalent to EUR 1,900, for the costs and expenses incurred before the domestic courts which included PLN 1,400 for court fees at the cassation stage and PLN 4,870 for the legal representation of the applicants before the domestic courts. He further claimed PLN 14,000, equivalent to EUR 4,200, for the costs of their representation before the Court. 47. The Government submitted that the costs and expenses should be awarded only in so far as they had been necessarily incurred and in a reasonable amount. 48. According to the Court ’ s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and were reasonable as to quantum. In the present case, the Court notes that the applicant sufficiently substantiated that these sums had been actually and necessarily incurred by submitting relevant invoices and other evidence. Regard being had to the information in its possession and the above criteria, the Court allows the first applicant ’ s claim in full and awards him the sum of EUR 6,100 covering costs under all heads. C. Default interest 49. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.
The Court held that there had been a violation of Article 10 (freedom of expression) of the Convention, finding that the reasons adduced by the Polish courts could not be regarded as relevant and sufficient to justify the interference, which had been disproportionate to the legitimate aim pursued, namely the protection of the reputation or rights of others. It noted in particular that the applicants’ primary aim had not been to denigrate the quality of the crisps but to raise awareness of the type of slogans used by the manufacturer and the unacceptability of such tactics to generate sales. Moreover, in performing its duty to impart information and ideas on matters of public interest, the press was entitled to have recourse to a degree of exaggeration or even provocation. While the wording employed by the applicants had been exaggerated, this had only been in reaction to an advertising campaign which had displayed a lack of sensitivity and understanding for the age and vulnerability of children. The style of the applicants’ expression had thus been motivated by the type of slogans to which they were reacting and, in the context, had not overstepped the boundaries permissible to a free press.