The Helsinki Foundation for Human Rights wishes to express its’ concern over Janusz Palikot’s indictment, based on Article 212 of the Criminal Code, of three journalists employed at „Dziennik”; Wojciech Cieśla, Michał Majewski, and Anna Gielewska, as well as over the large damages demanded in the ongoing civil litigation against the Publisher of "Dziennik" – Axel Springer Polska Sp. z.o.o. and its’ lead editor, Robert Krasowski. In said litigation, Janusz Palikot is demanding 10 million PLN of damages on behalf of Lubelskie Hospicium im. Małego Księcia in Lublin, on the grounds that „Dziennik” published press materials concerning the finances of his election campaign, as well as material on the supposed allocation of his assets to tax havens, during the last week of May and the first week of June of this year.
The following statement of the Helsinki Foudation for Human Rights does not concern the substance and validity of the submitted indictment. Its role, however, is to draw attention to certain legal elements, whose use in legal cases against journalists may be contrary to international standards, especially guarantees of press freedom.
The Helsinki Foundation for Human Rights has intervened multiple times in cases involving criminal responsibility for defamation, regulated by Article 212 of the Criminal Code. For many years, we have sought to highlight the fact that the Polish legal system emphasizes protection of private property over the freedom of expression and cultivation of an unrestricted environment for public debate; both of which are crucial for the development of a democratic society. Our views are confirmed by the European Court of Human Rights, which has indicated through its’ verdicts that the sentencing of journalists through the criminal courts, especially if they are sentenced to prison, is a disproportionate punishment. According to the ECHR, the criminal prosecution of defamation cases not only violates Article 10 of the European Convention of Human Rights, but also, by default, it creates a so-called „chilling effect” which leads to a breach of the terms of the Convention (for example, in the recent verdict of Długołęcki vs. Poland (ECHR judgment 2/24/09, case number 23806/03, art. 47.). In the current situation, journalists and publishers may, due to the potential risk of criminal conviction, suppress the publication of certain articles to the detriment of the controlling role of the media.
In the current case, the fact that Janusz Palikot is an active politician demands emphasis. Due to this, he should expect large-scale media interest and a thorough critique of his public activities. The ECHR has stated numerous times that public figures should tolerate a sizable amount of criticism concerning their activities, on account of the nature of their position (i.e. ECHR judgment Scharsach and News Verlagsgesellschaft vs. Austria (11/13/03, case number 39394/98, art. 30).
It is also unsettling that Janusz Palikot is trying the case through the criminal courts, as he has spoken out on numerous occasions in favor of the abolition of Article 212 of the Criminal Code (for example, „I am against such restrictions on free expression”, Wprost Magazine, issue 14/2008). In relation to the above, Janusz Palikot should strive for the quickest possible resolution of the problem of the criminal responsibility of journalists in the Polish legal system.
This is because, in light of international standards, civil liability is seen as sufficient, and critics of defamation lawsuits are now beginning to argue that it might be too heavy-handed. In this case, civil litigation should also be sufficient; however, the high amount of damages demanded by Janusz Palikot on account of the violation of his personal property raises doubts about such a course of action.
Due to the increasing frequency of lawsuits against journalists, the Helsinki Foundation for
Human Rights has drafted a special program to deal with this type of litigation – „Obserwatorium wolności mediów w Polsce” (the Observatory of media freedom in Poland). Through the activity of the project, we are witnessing an increasing tendency for civil litigation with very high amounts of damages. Lawsuits over libel claims, as well as judicial verdicts demanding large amounts to be paid in damages, both with intent to eliminate certain press publications, have recently become common practice. Various countries have drawn up various solutions to counteract this type of action. It is rightly said that awarding high damages may interfere with the functioning of the press to a significant degree. It is also postulated that conducting this type of litigation is in itself responsible for the „chilling effect”, analogous to the upholding of criminal sanctions for expression in the national criminal code. Several European countries have implemented upper limits to the amount of defamation claims that can be investigated (see http://www.article19.org/defamationmap/ fines.pdf). In our opinion, a sufficient signal at this stage should involve a decisive court reaction and a move to take advantage of the possibility of limiting the due amount in damages, which will show that such elevated damages claims will not be acknowledged. It bears note that the basic function of Article 448 of the Civil Code is regulating damages; its preventive and penal functions are secondary. The latter should be put into use in the case of „infotainment” publications, which do not significantly influence public opinion. Newsworthy publications, which are important in terms of public debate, should be treated by a different standard.
Many European countries are faced with similar issues today as well (for example, Great Britain, where such lawsuits are brought to court on a daily basis). A critical viewpoint thereof is exercised by the British PEN Club in the case of a lawsuit filed against three Thai journalists (The Guardian, 4/29/08). The issue of the high damages being disproportionate to the complaint came under the jurisdiction of the European Court of Human Rights. In the judgment of the ECHR, the amount requested in damages should be proportional to the goal, i.e the protection of the image and reputation of a person, and should not be used to discourage free expression about that person. It is up to the courts to investigate defamation cases and adjust the size of the damages according to the financial resources of the publishers, in such a manner that they are not eliminated from the market (see ECHR judgment Tolstoy Mikolavsky vs. Great Britain, 7/13/95, case number 18139/91).
In the name of the Helsinki Foundation for Human Rights,
Danuta Przywara
Adam Bodnar
