PROCEDURE

The case originated in an application (no. 33846/07) against the Republic of Poland lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by two Polish nationals, Mr Szymon Węgrzynowski and Mr Tadeusz Smolczewski (“the applicants”), on 7 August 2007.

The applicants were represented by Mr M. Lach, a lawyer practising in Warsaw. The Polish Government (“the Government”) were represented by their Agent, Mr J. Wołąsiewicz, succeeded by Ms J. Chrzanowska, of the Ministry of Foreign Affairs.

The applicants alleged that their rights to respect for their private life and reputation had been breached.

On 15 November 2011 the application was communicated to the Government. It was also decided to rule on the admissibility and merits of the application at the same time (Article 29 § 1).

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

The applicants live in Katowice.

On 8 May 2002 the Warsaw Regional Court allowed the applicants’ claim under Articles 23 and 24 of the Civil Code for the protection of personal rights. The court found that B.K. and A.M., journalists working for the national daily newspaper Rzeczpospolita, had published an article about a number of politicians. The journalists had alleged that the applicants, who were lawyers, had made a fortune over the years by assisting in shady business deals in which these politicians were involved. The journalists had alleged that the applicants had taken advantage of their positions at the expense of the public purse by obtaining unjustified benefits from the manner in which they had carried out their professional roles as liquidators of State‑owned companies in bankruptcy.

The court observed that the journalists had failed to contact the applicants and that their allegations were, to a large extent, based on gossip and hearsay. It noted that journalists had a right and an obligation to inform society about important issues and that they enjoyed freedom of expression, guaranteed by the Constitution. However, the authors of the article had failed to take the minimum steps necessary in order to verify the information contained in the article by at least getting in touch with the applicants and trying to obtain their comments. The allegations had not been shown to have had a plausible factual basis. The journalists had smeared the applicants’ good name and reputation. The court allowed the applicants’ claim in its entirety, by ordering the journalists and the editor‑in‑chief to pay, jointly, PLN 30,000 to a charity and to publish an apology in the newspaper.

The defendants appealed. On 24 April 2003 the Warsaw Court of Appeal dismissed their appeal, endorsing the findings of fact and the reasoning of the first‑instance court. The obligations imposed by the courts were subsequently complied with by the defendant newspaper.

On 7 July 2004 the applicants sued again the newspaper under the same provisions of the Civil Code (see paragraph 6 above). They alleged that they had recently found out that the article remained accessible on the newspaper’s Internet website. They submitted that the article was positioned prominently in the Google search engine and that anyone seeking information about them had very easy access to it. The article’s availability on the newspaper’s website, in defiance of the earlier judicial decisions, created a continuing situation enabling a large number of people to read it. The applicants’ rights were thereby breached in the same way as had occurred through the publication of the original article. It rendered the protection granted by the judgments in their favour ineffective and illusory. The applicants sought an order requiring the defendants to take down the article from the newspaper’s website and publish a written apology for their rights having been breached by way of the article’s continued presence on the Internet. They sought compensation in the amount of PLN 11,000 for the non‑pecuniary damage.

In their reply to the statement of claim, the defendants submitted that the case was res judicata, The applicants had already obtained a judgment in their favour. Moreover, the article had been placed in the archive of the website. Readers would therefore be aware that the article had been published in the past. The article had been published and could by no means be erased from history or, for that matter, from copies of “Rzeczpospolita” kept in numerous libraries and archives throughout the country. The applicants’ request to have it expunged was therefore ill‑founded, not only because it lacked a legal basis but also because it was absurd. The defendants further submitted that the applicants had referred to the publication of the article on the newspaper’s website in the first set of proceedings. They had therefore already been well aware that the article had been disseminated in that way. As they had failed to submit any specific claims in respect of the Internet publication in the first set of proceedings, it had to be inferred that they had not sought to have any measures taken in respect of the online version of the article and that they had been fully satisfied by their situation having been remedied in the manner ordered by the judgments given in the first set of proceedings.

The Warsaw Regional Court, by a judgment of 28 September 2005, dismissed the applicants’ claim. It first referred to the judgments of 8 May 2002 and 24 April 2003. It noted the applicants’ submission that they had discovered, a year after the latter judgment had been given, that the article was still available on the newspaper’s website. It observed that the facts of the case were not in dispute betweeen the parties. The applicants’ submissions had addressed facts – namely the article’s continued presence on the newspaper’s website five years after the publication of the article in the newspaper – which had occurred after the judgment in the first case had been given. The gist of the legal issue to be determined by the court was whether the discovery of a new source of publication – including on the Internet – provided a factual basis for a new claim for the protection of personal rights within the meaning of the Civil Code. In the court’s view, the response to such a question should be in the positive. The court was of the opinion that the discovery of a new source of publication, namely the newspaper’s website, of the defamatory article had given rise to a new claim on the applicants’ part. The issues involved in the case were therefore not res judicata. However, in the circumstances of the case the court was of the view that the defendants’ arguments had to be given an equal weight. The court referred to the constitutional guarantees of free speech and noted that preventive censorship was incompatible with the Constitution. It was the journalists’ right and obligation to inform the general public of matters of public interest.

Adressing the three claims made by the applicants, the court stressed that removing the article from the website would have been devoid of any practical purpose and would amount to censorship and to rewriting history. Moreover, it would run counter to the principles of archiving. The court pointed out that the applicants have already received a public apology. Allowing the applicants’ claim to have a new apology published would not offer adequate protection to the applicants. Had they sought an order in the present set of proceedings that the Internet publication be supplemented by a footnote or a link informing a reader about the judgments of 8 May 2002 and 24 April 2003, or had they asked the court to order the defendants to publish an apology on the newspaper’s website, the court would have given serious consideration to such a request.

The court further noted that the applicants had already received compensation in the first set of the proceedings. It was further stated that if they had discovered circumstances relevant for the assessment of the case but unknown to them during the first set of the proceedings, they should have requested that the proceedings be reopened rather than bringing a new civil case before the courts.

The applicants appealed. They argued that the case was important in that it raised new issues which had hitherto not been addressed by judicial practice. They submitted that each new reading of the article on the newspaper’s website, which was open to the general public, amounted to a new publication of that article. Traditional principles governing the archiving of various printed materials and documents in traditional archives were not the same as those applicable to the operation of a website, regardless of whether a part of it had been labelled as an “archive” or not. The term “archive” was to be understood as a set of documents which had lost their currency. The Internet was not an instrument for archiving materials, but had to be regarded as a means of communication of information on current topics. The mere fact that a part of a website was called an “archive” did not affect this in any way.

In so far as the first-instance court had been of the view that the publication of a printed apology would have been, in the circumstances of the present case, devoid of any practical purpose, the applicants argued that under Article 24 of the Civil Code it had been open to that court to order other measures to remedy the breach of their rights. Article 24 provided that in order to remedy an infringement of personal rights “necessary steps” could be taken, but did not specify the concrete nature of such measures. The court had unequivocally acknowledged that the impugned article had violated their rights. It had, however, limited itself to dismissing the claim. It had failed to consider, contrary to its duty, other remedial measures, including those it had expressly referred to in its judgment.

On 20 July 2006 the Warsaw Court of Appeal dismissed the appeal. It was of the view that it was of cardinal importance for the assessment of the case that the article had been published on the newspaper’s website in December 2000. The court noted that the applicants had submitted that they had only learned of its online publication a year after the judgment given in April 2003 had become final. However, the fact that in the first set of proceedings they had failed to make a specific request for remedial measures in respect of the online publication made it impossible for the court in the present case to examine facts which had already existed prior to that judgment. The plaintiffs could not lodge a new claim based on factual circumstances which had already existed during the previous set of proceedings. The court noted in passing that the existing online publication was not a fact which would have been impossible to establish at that time (“nie była to tzw. okoliczność nieujawnialna”).

The applicants submitted an appeal on points of law, invoking their right to the effective legal protection of their personal rights, including their reputation. They reiterated that the continued availability of the article on the newspaper’s website infringed their personal rights.

On 3 November 2006 the Warsaw Court of Appeal requested the applicants’ legal representative to amend the statement of appeal’s formal deficiencies by specifying whether it had been lodged on behalf of one or both of the applicants. It noted that the court fee paid in connection with the appeal had corresponded to the sum to be paid for an appeal lodged by one person only.

By letter of 10 November the applicants’ lawyer clarified that the appeal had been lodged by the second applicant, Mr Smolczewski.

On 17 November 2006 the Warsaw Court of Appeal rejected the appeal in so far as it related to the first applicant, having regard to the fact that the relevant court fee had not been paid. This decision was served on the applicants’ lawyer on 4 December 2006. No appeal was lodged against this decision.

By a decision of 7 February 2007 the Supreme Court, sitting in camera, refused to entertain the first applicant’s cassation appeal (odmówił przyjęcia kasacji do rozpoznania).
NOT_CONFIDENTIAL
check
001-122365_a3_e1
001-122365_a3_em1
CODE
DIRECT
33846/07
NOT_CONFIDENTIAL
correct
001-122365_a3_e2
001-122365_a3_em2
ORG
NO_MASK
Republic of Poland
NOT_CONFIDENTIAL
check
001-122365_a3_e3
001-122365_a3_em3
DEM
QUASI
Polish
NOT_CONFIDENTIAL
check
001-122365_a3_e4
001-122365_a3_em4
PERSON
DIRECT
Mr Szymon Węgrzynowski
NOT_CONFIDENTIAL
check
001-122365_a3_e5
001-122365_a3_em5
PERSON
QUASI
Mr Tadeusz Smolczewski
NOT_CONFIDENTIAL
check
001-122365_a3_e6
001-122365_a3_em6
DATETIME
QUASI
7 August 2007
NOT_CONFIDENTIAL
check
001-122365_a3_e7
001-122365_a3_em7
PERSON
QUASI
Mr M. Lach
NOT_CONFIDENTIAL
check
001-122365_a3_e8
001-122365_a3_em8
LOC
QUASI
Warsaw
NOT_CONFIDENTIAL
insert
001-122365_a3_e9
001-122365_a3_em9
ORG
NO_MASK
Polish Government
NOT_CONFIDENTIAL
check
001-122365_a3_e10
001-122365_a3_em10
PERSON
QUASI
Mr J. Wołąsiewicz
NOT_CONFIDENTIAL
check
001-122365_a3_e11
001-122365_a3_em11
PERSON
QUASI
Ms J. Chrzanowska
NOT_CONFIDENTIAL
insert
001-122365_a3_e12
001-122365_a3_em12
ORG
NO_MASK
Ministry of Foreign Affairs
NOT_CONFIDENTIAL
check
001-122365_a3_e13
001-122365_a3_em13
DATETIME
QUASI
15 November 2011
NOT_CONFIDENTIAL
check
001-122365_a3_e14
001-122365_a3_em14
LOC
QUASI
Katowice
NOT_CONFIDENTIAL
check
001-122365_a3_e15
001-122365_a3_em15
DATETIME
QUASI
8 May 2002
NOT_CONFIDENTIAL
check
001-122365_a3_e16
001-122365_a3_em16
ORG
QUASI
Warsaw Regional Court
NOT_CONFIDENTIAL
check
001-122365_a3_e17
001-122365_a3_em17
MISC
QUASI
Civil Code
NOT_CONFIDENTIAL
insert
001-122365_a3_e18
001-122365_a3_em18
PERSON
QUASI
B.K.
NOT_CONFIDENTIAL
insert
001-122365_a3_e19
001-122365_a3_em19
PERSON
QUASI
A.M.
NOT_CONFIDENTIAL
insert
001-122365_a3_e20
001-122365_a3_em20
DEM
QUASI
journalists
NOT_CONFIDENTIAL
insert
001-122365_a3_e21
001-122365_a3_em21
ORG
QUASI
national daily newspaper Rzeczpospolita
NOT_CONFIDENTIAL
insert
001-122365_a3_e22
001-122365_a3_em22
DEM
QUASI
politicians
NOT_CONFIDENTIAL
check
001-122365_a3_e20
001-122365_a3_em23
DEM
QUASI
journalists
NOT_CONFIDENTIAL
insert
001-122365_a3_e23
001-122365_a3_em24
DEM
QUASI
lawyers
POLITICS
insert
001-122365_a3_e24
001-122365_a3_em25
MISC
QUASI
assisting in shady business deals in which these politicians were involved.
NOT_CONFIDENTIAL
check
001-122365_a3_e20
001-122365_a3_em26
DEM
QUASI
journalists
POLITICS
insert
001-122365_a3_e25
001-122365_a3_em27
MISC
QUASI
taken advantage of their positions at the expense of the public purse by obtaining unjustified benefits
POLITICS
insert
001-122365_a3_e26
001-122365_a3_em28
DEM
NO_MASK
liquidators of State‑owned companies in bankruptcy
NOT_CONFIDENTIAL
check
001-122365_a3_e20
001-122365_a3_em29
DEM
QUASI
journalists
NOT_CONFIDENTIAL
check
001-122365_a3_e20
001-122365_a3_em30
DEM
QUASI
journalists
NOT_CONFIDENTIAL
check
001-122365_a3_e20
001-122365_a3_em31
DEM
QUASI
journalists
NOT_CONFIDENTIAL
check
001-122365_a3_e20
001-122365_a3_em32
DEM
QUASI
journalists
NOT_CONFIDENTIAL
insert
001-122365_a3_e27
001-122365_a3_em33
QUANTITY
QUASI
PLN 30,000
NOT_CONFIDENTIAL
insert
001-122365_a3_e28
001-122365_a3_em34
MISC
QUASI
charity
NOT_CONFIDENTIAL
insert
001-122365_a3_e29
001-122365_a3_em35
MISC
QUASI
publish an apology in the newspaper
NOT_CONFIDENTIAL
check
001-122365_a3_e30
001-122365_a3_em36
DATETIME
QUASI
24 April 2003
NOT_CONFIDENTIAL
check
001-122365_a3_e31
001-122365_a3_em37
ORG
QUASI
Warsaw Court of Appeal
NOT_CONFIDENTIAL
check
001-122365_a3_e32
001-122365_a3_em38
DATETIME
QUASI
7 July 2004
NOT_CONFIDENTIAL
insert
001-122365_a3_e17
001-122365_a3_em39
MISC
QUASI
Civil Code
NOT_CONFIDENTIAL
insert
001-122365_a3_e33
001-122365_a3_em40
MISC
QUASI
Google search engine
NOT_CONFIDENTIAL
insert
001-122365_a3_e29
001-122365_a3_em41
MISC
NO_MASK
001-122365_a3_em35
publish a written apology
NOT_CONFIDENTIAL
insert
001-122365_a3_e34
001-122365_a3_em42
QUANTITY
QUASI
PLN 11,000
NOT_CONFIDENTIAL
insert
001-122365_a3_e35
001-122365_a3_em43
MISC
NO_MASK
archive
NOT_CONFIDENTIAL
correct
001-122365_a3_e21
001-122365_a3_em44
ORG
QUASI
001-122365_a3_em21
Rzeczpospolita
NOT_CONFIDENTIAL
check
001-122365_a3_e16
001-122365_a3_em45
ORG
QUASI
Warsaw Regional Court
NOT_CONFIDENTIAL
check
001-122365_a3_e36
001-122365_a3_em46
DATETIME
QUASI
28 September 2005
NOT_CONFIDENTIAL
check
001-122365_a3_e15
001-122365_a3_em47
DATETIME
QUASI
8 May 2002
NOT_CONFIDENTIAL
check
001-122365_a3_e30
001-122365_a3_em48
DATETIME
QUASI
24 April 2003
NOT_CONFIDENTIAL
insert
001-122365_a3_e37
001-122365_a3_em49
DATETIME
QUASI
year
NOT_CONFIDENTIAL
check
001-122365_a3_e38
001-122365_a3_em50
DATETIME
QUASI
five years
NOT_CONFIDENTIAL
check
001-122365_a3_e17
001-122365_a3_em51
MISC
QUASI
Civil Code
NOT_CONFIDENTIAL
check
001-122365_a3_e20
001-122365_a3_em52
DEM
QUASI
journalists
NOT_CONFIDENTIAL
check
001-122365_a3_e39
001-122365_a3_em53
MISC
NO_MASK
archiving
NOT_CONFIDENTIAL
check
001-122365_a3_e15
001-122365_a3_em54
DATETIME
QUASI
8 May 2002
NOT_CONFIDENTIAL
check
001-122365_a3_e30
001-122365_a3_em55
DATETIME
QUASI
24 April 2003
NOT_CONFIDENTIAL
insert
001-122365_a3_e40
001-122365_a3_em56
MISC
NO_MASK
publish an apology
NOT_CONFIDENTIAL
check
001-122365_a3_e39
001-122365_a3_em57
MISC
NO_MASK
archiving
NOT_CONFIDENTIAL
check
001-122365_a3_e35
001-122365_a3_em58
MISC
NO_MASK
archive
NOT_CONFIDENTIAL
check
001-122365_a3_e35
001-122365_a3_em59
MISC
NO_MASK
archive
NOT_CONFIDENTIAL
insert
001-122365_a3_e41
001-122365_a3_em60
MISC
NO_MASK
set of documents which had lost their currency
NOT_CONFIDENTIAL
insert
001-122365_a3_e39
001-122365_a3_em61
MISC
NO_MASK
archiving
NOT_CONFIDENTIAL
check
001-122365_a3_e35
001-122365_a3_em62
MISC
NO_MASK
archive
NOT_CONFIDENTIAL
insert
001-122365_a3_e42
001-122365_a3_em63
MISC
QUASI
Article 24
NOT_CONFIDENTIAL
check
001-122365_a3_e17
001-122365_a3_em64
MISC
QUASI
Civil Code
NOT_CONFIDENTIAL
check
001-122365_a3_e42
001-122365_a3_em65
MISC
QUASI
Article 24
NOT_CONFIDENTIAL
insert
001-122365_a3_e43
001-122365_a3_em66
MISC
QUASI
“necessary steps”
NOT_CONFIDENTIAL
check
001-122365_a3_e44
001-122365_a3_em67
DATETIME
QUASI
20 July 2006
NOT_CONFIDENTIAL
check
001-122365_a3_e31
001-122365_a3_em68
ORG
QUASI
Warsaw Court of Appeal
NOT_CONFIDENTIAL
check
001-122365_a3_e45
001-122365_a3_em69
DATETIME
QUASI
December 2000
NOT_CONFIDENTIAL
check
001-122365_a3_e37
001-122365_a3_em70
DATETIME
QUASI
year
NOT_CONFIDENTIAL
check
001-122365_a3_e46
001-122365_a3_em71
DATETIME
QUASI
April 2003
NOT_CONFIDENTIAL
insert
001-122365_a3_e47
001-122365_a3_em72
MISC
NO_MASK
“nie była to tzw. okoliczność nieujawnialna
NOT_CONFIDENTIAL
check
001-122365_a3_e48
001-122365_a3_em73
DATETIME
QUASI
3 November 2006
NOT_CONFIDENTIAL
check
001-122365_a3_e31
001-122365_a3_em74
ORG
QUASI
Warsaw Court of Appeal
NOT_CONFIDENTIAL
check
001-122365_a3_e49
001-122365_a3_em75
DATETIME
QUASI
10 November
NOT_CONFIDENTIAL
check
001-122365_a3_e5
001-122365_a3_em76
PERSON
DIRECT
001-122365_a3_em5
Mr Smolczewski
NOT_CONFIDENTIAL
check
001-122365_a3_e50
001-122365_a3_em77
DATETIME
QUASI
17 November 2006
NOT_CONFIDENTIAL
check
001-122365_a3_e31
001-122365_a3_em78
ORG
QUASI
Warsaw Court of Appeal
NOT_CONFIDENTIAL
check
001-122365_a3_e51
001-122365_a3_em79
DATETIME
QUASI
4 December 2006
NOT_CONFIDENTIAL
check
001-122365_a3_e52
001-122365_a3_em80
DATETIME
QUASI
7 February 2007
NOT_CONFIDENTIAL
insert
001-122365_a3_e53
001-122365_a3_em81
ORG
QUASI
Supreme Court
NOT_CONFIDENTIAL
insert
001-122365_a3_e54
001-122365_a3_em82
MISC
NO_MASK
odmówił przyjęcia kasacji do rozpoznania
Szymon Węgrzynowski
POL
CHAMBER
Task: Annotate the document to anonymise the following person: Szymon Węgrzynowski