Case Law: Strasbourg, Stankiewicz v. Poland, Responsible public interest journalism protected by Article 10 – Hugh Tomlinson QC

28 10 2014

Rzeczpospolita_9-06-2010_paliwa_5-40In the case of Stankiewicz and Others v. Poland [2014] ECHR 1061, the Fourth Section of the Court of Human Rights held that there had been a violation of Article 10 where the domestic courts had found that an article about a demand for a bribe by a public official had breached the official’s rights.  This was a public interest story in relation to which the applicants had complied with the tenets of responsible journalism.

Background

The applicants were two Polish journalists, Andrzej Stankiewicz and Małgorzata Solecka, and the publishing company of the national daily newspaper Rzeczpospolita, where the applicants worked.

On 12 May 2003 “Rzeczpospolita” published on the front and fourth pages an article entitled “Drugs for millions of dollars” written by the applicants. It was alleged that WD, the Head of the Private Office of the Minister of Health had demanded a bribe from representatives of a pharmaceutical company, offering in return his assistance in having a drug manufactured by the company placed on the list of drugs to be refunded by the national health care scheme.

The article dealt with two meetings in Warsaw restaurants attended by WD and two representatives of the pharmaceutical company.  It said

“W.D., the Head of the Private Office of M.Ł. [Minister of Health], demanded a multi-million dollar bribe, offering his assistance in placing drugs on the list of refunded drugs – asserts foreign pharmaceutical company. W.D. rejects these allegations, and M.Ł. [the Minister] does not believe the version of events presented by the company. …

The Court noted that

“The journalists sought comments from W.D. before the publication of the article. They put to him questions about his presence as a high-ranking State official at a business meeting between two companies. W.D. initially denied that he had participated in it. However, two days later he recalled that he had in fact participated in the second meeting. Contrary to his earlier assertions, he also stated that the issue of the list of refunded drugs had been discussed at the meeting but at the initiative of the pharmaceutical company. Eventually, W.D. admitted that his participation at the meetings had been inappropriate and stated that he had felt uncomfortable in his role of an official” [11].

On 22 May 2003 WD brought civil proceedings against the applicants for infringement of his personal rights.  The Court heard evidence from all participants at the meetings.  On 17 June 2005 the Warsaw Regional Court dismissed WD’s claim. It found that the journalists had shown sufficient diligence in gathering and publishing the information.

A criminal investigation was commenced and on 17 March 2004 WD was charged with demanding a bribe and procurement fraud.  On 17 January 2007 this prosecution was discontinued for lack of evidence.

In the meantime, WD had appealed against this decision and abandoned his claim for damages.  On 11 October 2006 the Court of Appeal allowed his appeal.  It criticised the applicants’ investigation of the story and ordered them to publish an apology.  It awarded costs and court fees to WD.  On 13 April 2013 the Supreme Court dismissed the applicants’ appeal.

Judgment

It was common ground that there was an interference with the applicants’  Article 10 rights and that this was prescribed by law and for a legitimate aim [60].  The issue was whether it was “necessary in a democratic society”.

After setting out the well-known general principles in relation to this issue the Court noted that

“Article 10 of the Convention does not guarantee wholly unrestricted freedom of expression even with respect to press coverage of matters of serious public concern and relating to politicians or public officials. Under the terms of its second paragraph, the exercise of this freedom carries with it “duties and responsibilities”, which also apply to the press. These “duties and responsibilities” are liable to assume significance when there is a question of attacking the reputation of a named individual and infringing the “rights of others”. By reason of the “duties and responsibilities” inherent in the exercise of the freedom of expression, the safeguard afforded by Article 10 to journalists in relation to reporting on issues of general interest is subject to the proviso that they are acting in good faith in order to provide accurate and reliable information in accordance with the ethics of journalism” [62]

It went on to point out that, in previous cases, when considering whether to exempt newspapers from the ordinary requirement to prove the truth of defamatory statements it had taken various factors into account, in particular [63]:

  • the nature and degree of the defamation
  • the extent to which the newspaper could have reasonably regarded its sources as reliable with regard to the allegations
  • whether the newspaper had conducted a reasonable amount of research before publication;
  • whether the newspaper presented the story in a reasonably balanced manner
  • whether the newspaper gave the persons defamed an opportunity to defend themselves.

The Court emphasised the dangers of an “overly rigorous approach to the assessment of a journalist’s professional conduct” and the vital role of “public watchdog” which the press performs [64]

In this case, the article concerned issues of public interest [65].  WD, at the time, held an important public position and, as a result, the limits of acceptable criticism were wider than in relation to a private individual [66]

The Court of Appeal had focused its assessment of journalistic diligence on one element – a failure to speak to one of the participants at the meetings.  However, the journalists had undertaken to verify the story meticulously.

The extent to which the applicants could reasonably have regarded the information provided by the company representatives as reliable had to be determined at the time of the preparation of the article – rather than with the benefit of hindsight [72]

The Court concluded that, having regard to all the facts and to the overall content of the article,

“the applicants complied with the tenets of responsible journalism. The research done by the applicants before the publication of their allegations was in good faith and complied with the ordinary journalistic obligation to verify the facts from reliable sourcesthe allegations against W.D. were underpinned by a sufficient factual basis. It should also be noted that the content and the tone of the article was on the whole fairly balanced. The applicants, having approached a number of sources, gave as objective picture as possible of W.D. and offered him to present his version of the relevant events and to comment on the allegations raised. W.D.’s version of events was presented in the article.” [75]

Finally, the Court noted that the domestic courts had not taken into account the status of WD as a public official and did not appreciate that the article concerned issues of public interest.

 In consequence, the judicial authorities did not carry out a careful balancing exercise between the right to impart information and protection of the reputation or rights of others [76]

As a result, the Court found that there was a violation of the Article 10 rights of the applicants.

The individual applicants were each award €5,000 non-pecuniary damages along with the costs which they paid to WD in the domestic proceedings.

Comment

This is an unsurprising decision on the facts.  There was a strong public interest in the story and the journalists had undertaken a full and proper investigation before publication.  WD’s denial was published prominently.

Nevertheless, the case is a useful reminder of the Convention approach to defamation claims against the media.  The Court has consistently protected the right of journalists:

“to divulge information on issues of general interest provided that they are acting in good faith and on an accurate factual basis and provide “reliable and precise” information in accordance with the ethics of journalism” (see Fressoz and Roire v France, GC, Judgment of 21 January 1999 [54])

In the Stankiewicz case the Court emphasised that an “overly rigorous” approach to the assessment of journalist’s professional conduct should not be taken – on the basis that this would have a “chilling effect” on the media generally [64].

This is an echo of the strictures in the English case law against taking a “formulaic” approach to Reynolds qualified privilege.  It does not mean, however, that Article 10 does not require proper journalistic responsibility.  The case law contains many examples of cases where journalists have failed in Article 10 challenges because they have not acted responsibly (see, for example, Rumyana Ivanova v. Bulgaria, no. 36207/03, [64]-[65], 14 February 2008; Kania and Kittel v. Poland, no. 35105/04, [45]-[46], 21 June 2011

In particular, journalists must comply with what the Court has described as “the ordinary journalistic obligation to verify a factual allegation” taking into account the obvious point that “the more serious the allegation is, the more solid the factual basis should be” (see Rumyana Ivanova [64]).

This line of authority is important when the domestic courts come to consider the defence of “publication on a matter of public interest” under section 4 of the Defamation Act 2013.  It shows that “reasonable belief” in public interest must, consistently with the Article 10 case law, be founded on proper steps taken to verify truth.  Section 4 must be construed consistently with this approach.

This case is a reminder of the rich and important Strasbourg case law which protects responsible public interest journalism.  The newspapers who have been campaigning for the repeal of the Human Rights Act 1998 and the reduction of the Court of Human Rights to an “advisory body” should take note of what freedom of expression will lose if such a campaign were to succeed.

Hugh Tomlinson QC is a member of Matrix Chambers and an editor of Inforrm.  

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11 11 2014
Case Law: Strasbourg, Stankiewicz v. Poland, Re...

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