It is true that neither the Constiutional Tribunal nor the European Court of Human Rights have spoken out in favor of an unconditional removal of laws that provide for the criminal prosecution of defamation; however, the verdicts of both tribunals are making it considerably more difficult to apply the criminal code as a means to curb expression. The Constitutional Tribunal has ruled (verdict SK 43/05) that journalists does not need to prove that they acted in the public’s interest. The ECHR has, on its’ part, ruled that using the criminal code to protect one’s reputation is reconciliable with Article 10 of the Convention only in certain, exceptional situations: cases concerning remarks that aim to incite and instigate violence.
Disproportionate Consequences:
The consequences of the litigation for Mr. Rewiński should also be noted. Aside from the court-pronounced punishment (the court demanded that Mr. Rewiński pay a fine and donate money toward a social cause), Rewinski became a convict, his surname was placed in the Register of Convicts, and he was placed in the dock, being obliged to show up in court for hearings numerous times over the past five years. What makes Mr. Rewinski’s case exceptional however, was his temporary arrest during the course of the trial, which deprived him of his liberty for seven days, without a legal basis, and had negative consequences in his professional life.
Civil Law is Sufficient:
None of the above consequences would have been an issue if Poland would adopt a civil-law-only model of reputation protection. Mr. Rewiński case offers further confirmation that maintaining Article 212 of the Criminal Code is harmful towards the freedom of expression, especially given the fact that the consequences related to its use are markedly disproportionate to its stated intent. As the plaintiff explained in court, their goal in the trial was primarily to obtain an apology from Mr. Rewinski, which could have easily been obtained through civil proceedings. In that case, Mr. Rewlinski would not have been treated like a convict, and, most importanlty, he would not have spent his Easter holiday in jail.
Article 212 of the Criminal Code was frequently criticized as a vehicle for the restriction of freedom of expression in Poland. The statistics show that it is eagerly used in a numerous court cases each year. On the 18th of June, 2008, the District Court in Bielsko-Biala convicted the lead editor of „Super-Nowa” for placing a picture of the Mayor of the town alongside a picture of the President of Belarus. This week, a journalist and blogger writing about local news in Mosin, turned to the Helsinki Foundation for Human Rights after being accused by the local mayor. Next week, a retired man, accused by the City Council of writing a scathing letter to the municipality, will attempt to defend his innocence before the District Court in Czestochowa. There is a multitude of such cases all around Poland. The problem does not lie in the severity of the verdicts, however (as the damages requested are relatively small, and time in prison is rarely, if ever, assigned), but in the necessity of appearing in court as a defendant. However, it is worth noting that even mild verdicts in Article 212-related criminal cases are regarded by the ECHR as a breach of the Convention (1).
The Chilling Effect
After Tuesday’s verdict, Mr. Rewinski should lodgea complaint with the ECHR in Strassbourg. In the hypothetical verdict of Rewinski vs. Poland, the ECHR would probably conclude that Poland violated the terms of the Convention, as it has stated multiple times that the State should have shown a high degree of restraint in using drastic measures to interfere in the freedom of expression, because excercising criminal responsibility for affront or defamation leads journalists to self-censor their work, creating a so-called „chilling effect”(2).
Let us hope that this case, the subsequent verdict of the ECHR, and the experiences of other countries that have stopped using the criminal code as a basis for anti-defamation legislation, opting instead to use, with equal effectiveness, civil law, will persuade legislators that, in a democratic country, where the media play a key role as public watchdogs, it is necessary to remove Article 212 of the Criminal Code. As a final note, the update of the law which is being prepared by the Ministry of Justice is insufficient and requires much farther reaching changes.
1. See the ECHR’s March 19, 2007 verdict in the case of Dabrowski vs. Poland, wherein the court demanded a fine of 1000 PLN and a further 300 PLN in damages
2. See the ECHR’s June 8, 1986 verdict in the case of Lingens vs. Austria
