Art. 10 of the European Convention on Human Rights protects various kinds of expression, including artistic, non-verbal and non-visual forms. This right means the freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. But there are situations where the state can legitimately impose certain conditions and restrictions on exercise of this right.
The convention states clearly in which cases the state may interfere in freedom of expression. The European Court of Human Rights has formulated a three-step system of evaluation of compliance of a state's actions with the convention.
Three-step evaluation system
Firstly, the state may interfere in freedom of expression by introducing formalities, conditions, restrictions and penalties prescribed by law. Interference by a state can take various forms, both prior to expression and in response to expression. Among the forms of interference mentioned are an order issued by an authority to disclose journalists' sources, disciplinary sanctions, payment of compensation, and criminal judgments. There must be a legal basis for any action on the part of the state in this regard, expressed by way of norms that are specific, available, and applied in a predictable manner.
Secondly, interference on the part of the state must serve a specific purpose. The convention gives a closed list of reasons for the state to take measures to restrict freedom of expression, which include the interest of national security, territorial integrity, and public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation and rights of others, for the prevention of disclosure of information received in confidence, and for maintaining the authority and impartiality of the judiciary.
Thirdly, interference by authorities must be necessary in a democratic state. This necessity must be evaluated by way of a proportionality test. A fair balance must be struck between the objective (one of the objectives stipulated in the convention) and the means used to achieve the objective (ECtHR judgment of 20 October 2015 in Pentikäinen v Finland, application 11882/10). Also, in order to evaluate the necessity to restrict the freedom of expression in a democratic state, a distinction must be drawn between assertions of fact and opinion. This distinction is crucial because it is much harder to find legitimate grounds for restriction of freedom of expression for opinions than for statements of fact.
Freedom of expression and protection of reputation
Under Polish law, one restriction of freedom of expression is exercised through Art. 212 of the Criminal Code, under which defamation is an offence. This offence is asserting that another entity behaves in a manner or has characteristics which could deride that entity publicly or put it at risk of loss of trust required for a particular function, profession, or type of activity. Essentially, the interest protected in this provision is dignity, i.e. the reputation of the aggrieved party and preservation of respect. It is acknowledged at the same time that a balance must be struck between protection of that interest, and other interests, and this includes freedom of expression and the right to criticise.
In defamation cases, statements are evaluated under Polish law in a similar way to that applied by the ECtHR. In this regard as well, a distinction is made between statements of fact and expressions of opinion. In addition, difficulties have been noted with respect to evidence for determining whether statements are true or false, and the possibility of treating them as defamation.
The ECtHR has stated in case law that it sees the possibility of issuance of a judgment in criminal proceedings as the greatest threat to exercise of the right provided for in Art. 10 of the convention. This concern is expressed among other things in the context of journalists being prevented from performing their social function by applying criminal sanctions against them to restrict freedom of expression. This is what makes Art. 212 of the Criminal Code controversial.
On occasion, the court has addressed in its case law the issue of criminal liability of journalists for defamation. The court's conclusions vary considerably from judgment to judgment, however, and this demonstrates the difficulty and complexity involved in evaluating a statement in a particular case. At times, Poland has been considered to be in breach of Art. 10 of the convention due to application of Art. 212 of the Criminal Code (e.g. ECtHR judgment of 13 January 2015 in Maciejewski v Poland, application 34447/05), but Poland has also been successful in cases before the court, raising the same criminal law argument (for example ECtHR judgment of 13 January 2015 in Łozowska v Poland, application 62716/09).
Not only criminal cases
Another possible form of interference, apart from criminal law measures, is an award of money in civil proceedings as compensation or payment towards a specific social cause, an option available in Poland under Art. 23 and 24 of the Civil Code.
Art. 23 lists the types of personal interests protected, including for instance a person's dignity and image. Art. 24 states that claims can be raised in situations of threat to or breach of personal rights, even in the form of a statement. In such a case as well, according to the practice of the Polish courts, rules have been formulated for evaluating statements and ruling on disputes of this kind, which are similar to the rules applied under criminal law and in international practice.
My freedom ends where yours begins
There is a lot of confusion surrounding the common meaning of "freedom of expression." This freedom is not fettered in any way. It is subject to restriction due to the personal interests of other people, such as reputation, which should not be undermined by criticism. Determining when such a breach takes place is not simple, however, as can be seen in the Polish case law and judgments of the European Court of Human Rights.
Joanna Duda, Dispute Resolution & Arbitration Practice, Wardyński & Partners
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