CoE: Conviction for the insult of a person through mass media according to the Polish Criminal Code violates Art. 10 ECHR

by Dr. Silke Hans
The Criminal conviction and imposition of a fine on a journalist under 216(2) of the Polish Criminal Code for an article mocking local government officials violates the editor´s right of freedom of expression. With this judgment from July 5th 2016 in the Case of ZIEMBIŃSKI v. POLAND (No. 2) the European Court of Human Rights underlines the editor´s right of freedom of expression as protected under Art. 10 ECHR.

In August 2004, the applicant was proprietor and editor-in-chief of the local newspaper Komu I Czemu and published an article headlined “Elegantly wrapped dung”, in which he criticized the local government. In this article the applicant described the ”author” of a proposal for quail farming in Radomasko, without stating any names, as “dull bosses”, “numbskull”, “dim-witted” and “a poser”. Six month after the article was published the mayor and two local government officials brought a private prosecution against the applicant for defamation. In February 2006, the district court found that the mayor and the other two officials had been easily identifiable on account of the publicity generated by the quail farming project and ruled that the words were insulting according to Art. 216 (2) of the Polish Criminal Code, which prohibits the insult “through the mass media”. The editor was convicted and sentenced to pay a 2.500 EUR fine because he had abused his freedom of speech and infringed the official´s dignity. 

The European Court of Human Rights decided that the applicant´s conviction violated Article 10 and based that judgment on several conclusions. When analyzing the article the Polish Courts did not take sufficiently into account that the applicant´s article was of satiric nature including irony concerning a matter of public interest. The Court failed to consider the remarks in the context of the article as a whole. Satire is a form of artistic expression and social commentary, which aims to provoke and agitate and its right to use has to be examined with particular care. The use of sarcasm and irony is perfectly compatible with the journalisms right of freedom of expression. Also the Court did not take into account enough that the limits of an acceptable criticism are wider with regards to politician and are also similarly wider (but not in every respect) to civil servants acting in an official capacity. Therefore, individuals who are taking part in a debate of public interest have to endure a certain degree of exaggeration, even provocation or immoderation.

Dr. Silke Hans, Senior Legal Researcher at the Institute of European Media Law.

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The judgment is available here.

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Source information: This article was originally published by the European Centre for Press and Media Freedom –