The case was originated in an application lodged with the Court on 6 October 2001. The applicant – Helena Wojtas-Kaleta was a journalist employed by Telewizja Polska (TVP). She alleged a breach of her right to freedom of expression guaranteed by article 10 of the Convention.
Gazeta Wyborcza, on 1 April 1999, a national newspaper, published an article reporting that two classical music programmes had been taken off the air. The article quoted an opinion which had been expressed by the applicant in an interview in her capacity as the President of the Polish Public Television Journalists’ Union (Syndykat Dziennikarzy Polskich Telewizji Polskiej). The applicant also signed an open letter addressed by 34 representatives of cultural and artistic circles in Wrocław to the board of TVP.
On 15 April 1999 the applicant was reprimanded in writing by her employer for failing to observe the company’s general regulation no. 14 § 2, which required her to protect her employer’s good name. The applicant argued in her appeal of 20 April 1999 to the Regional Director of TVP that when commenting on the employer’s decision she had been acting in her capacity as the president of a trade union. The reprimand was to be kept in her records for a period of up to one year, depending on the applicant’s behaviour. The applicant unsuccessfully objected to the reprimand. She argued that as a member of the trade union she had a right to criticise measures impairing the rights of employees.
On 13 May 1999 the applicant lodged a claim against TVP with the Wrocław District Court, requesting that the reprimand be withdrawn. She alleged that the reprimand had been an act of revenge by her employer for her trade-union activity and disagreed with the assessment made of her behaviour. By a judgment of 9 January 2001 the Wrocław District Court dismissed her claim. On 10 April 2001 the Wroclaw Regional Court upheld the contested judgment. It stated that the applicant’s comments had not been aimed at the protection of employees’ rights in connection with her function in the trade union but had taken the form of an assessment of the changes in programming policy.
The applicant submitted in the application to ECHR that her right to freedom of expression had been breached. As a journalist, she had had a right and an obligation to comment on matters of public interest. Her objective before the domestic courts had not been limited to having the reprimand annulled. She had also wished to obtain protection of the journalists’ right to comment on matters of public interest and considered that the programming line of the public television broadcaster should indubitably be qualified as such.
The Helsinki Foundation for Human Rights submitted that the right to freedom of speech in the workplace could legitimately be restricted, regard being had to the employer’s interests. An employee had a special duty towards its employer and therefore the exercise of his or her freedom of expression could be restricted. Such restriction was in general in compliance with the Convention, unless it infringed upon the principle of proportionality. It argued that the scope of free speech in the workplace was broader for a trade-union activist than for an ordinary employee. It further underlined that limits of freedom of speech at the workplace could be broader where a public employer was concerned. Such institutions should be subject to careful public scrutiny due to their public function or to the fact that they managed public property. Since TVP was a public broadcaster, it could not be treated as a typical private employer, although in strictly technical terms it was a joint stock company. Guarantees of the employee’s freedom of speech should be stronger in such public institutions. HFHR further emphasised that the employee’s duty of loyalty did not entail an absolute prohibition of criticism of the employer. It aimed essentially at protecting information relevant to its business efficiency. The circumstances under which public employers could discipline employees for the exercise of their right to freedom of expression were more restrictive.
Having regard to the role played by journalists in society and to their responsibilities to contribute to and encourage public debate, the Court considered that the obligation of discretion and constraint cannot be said to apply with equal force to journalists, given that it is in the nature of their functions to impart information and ideas.
The Court noted that the issues involved in the present case can be said to have been of public interest and concern. It reiterates that there is little scope under Article 10 § 2 of the Convention for restrictions on debate on questions of public interest and considers that the programming policy of public media is a matter of such interest. Additionally, the Court emphasised that where a State decides to create a public broadcasting system, the domestic law and practice must guarantee that the system provides a pluralistic audiovisual service.
In the present case, the applicant argued, both in the interview which she gave for the purposes of the article published in Gazeta Wyborcza and in the subsequent open letter which she had co-signed, that the changes in the programme service of the public television company did not sit well with the role which public television should play in society.
In the Court’s view, in the particular context of the applicant’s case, her obligations of loyalty and constraint must be weighed against the public character of the broadcasting company she worked for. The Court noted that the employer based the reprimand it issued to the applicant on a very wide interpretation of the employees’ obligation to protect its good name. It acted on the assumption that the mere fact that the applicant had participated in a public debate concerning its programming policy and had criticised it was sufficient to establish that she had been acting to her employer’s detriment, in breach of her obligations.
The courts (the District and Regional Courts in Wroclaw), when examining the applicant’s request for that reprimand to be set aside, they took no note of the applicant’s argument that she had been acting in the public interest. They limited their analysis to a finding that her comments amounted to acting to the employer’s detriment. As a result, they did not examine whether and how the subject matter of the applicant’s comments and the context in which they had been made could have affected the permissible scope of her freedom of expression.
The Court emphasised that the applicant’s comments could not be seen as a personal attack on another, or that an intention to offend could be ascribed to her them. The Court noted the applicant did not make any personal accusations against named members of the management. Furthermore, it is also relevant that the applicant’s good faith was never challenged either by the employer or by the domestic authorities involved in the proceedings.
The Court came to the conclusion that the interference with the applicant’s right to freedom of expression was not “necessary in a democratic society” and there has been a violation of Article 10 of the Convention.
The HFHR amicus curiae brief is available here.
