The European Court of Human Rights recently issued two rulings on the criminal liability of journalists for defamation, reaching a different conclusion in each.

In Maciejewski v. Poland, the court found a violation of a journalist's freedom of speech had occurred after he was convicted of defamation for an article insulting court employees. The ECtHR emphasized that the journalist diligently presented irregularities in the functioning of the justice system.

In its second judgment, Łozowska v. Poland, the court questioned the diligence of a journalist who had criticized the activities of a former judge from Białystok, and ruled that there had not been a violation of Article 10 (freedom of expression) of the Convention on Human Rights.

Maciejewski v. Poland

Marian Maciejewski is a journalist from Wrocław and a former employee of the newspaper Gazeta Wyborcza. In 2004, he wrote an article about abuses in the administration of justice in Lower Silesia entitled "The dishonest gaze of the Wrocław Themis," in which he described two employees of Wrocław courts as "thieves in the administration of justice" and working in a "mafia-like prosecutor-judge association." The Brzeg District Court convicted him of defamation and fined him 1,800 zlotys (450 euros). The court further ordered him to pay 1,000 zlotys (250 euros) to a charity. The Opole Regional Court upheld the sentence.

The European Court of Human Rights held that the conviction violated Mr. Maciejewski's freedom of expression. It also ruled that the domestic courts had failed to make a distinction between opinions and facts. In addition, the Polish courts did not take into account that Mr. Maciejewski had acted diligently in gathering and publishing the information.

"The ECtHR stressed in its judgment that in defamation cases, domestic courts must take into account not only how the ruling will affect the specific journalist, but also the impact of the court’s decision on the media in general," said Dominika Bychawska-Siniarska, a lawyer for the Helsinki Foundation for Human Rights who, together with Adam Bodnar (deputy president of HFHR), represented Mr. Maciejewski before the ECtHR.

Łozowska v. Poland

The case Łozowska v. Poland also concerned a journalist's conviction for defamation, but in this case the court found no violation of Article 10.

Marzanna Łozowska was convicted of the malicious defamation of former judge B.L. The journalist wrote that B.L. "had been punished for her shady links with criminal circles." Judge B.L. had been sanctioned and removed from her functions by the judiciary’s disciplinary authorities after being accused of misusing her judicial authority when she had interfered with the criminal proceedings against her husband, allegedly trying to use her position to discontinue the proceedings against him.

The domestic courts stated that the files of the disciplinary proceedings against B.L. did not entitle Ms. Łozowska to write about any links with criminal groups. According to the Polish courts, the readers could get an incorrect impression that the former judge herself maintained contacts with criminals and that that was the reason of her expulsion.

The ECtHR accepted the decision of the domestic courts and pointed out that Ms. Łozowska had violated journalism ethics by publishing unverified information. "The court held that although the applicant had a right to inform the public, in public interest, about irregularities in the functioning of the judiciary, she should not raise such serious allegations without sufficient factual basis," explained Ms. Bychawska-Siniarska.

The HFHR submitted its opinion in this case as amicus curiae in 2011. "In the opinion we pointed out that the journalist relied on the public statements of the then minister of justice, who commented on the case of B.L. in the context of the former judge’s link with 'the criminal world.' The ECtHR, however, did not refer to those arguments in its judgment," said Dorota Głowacka, an HFHR lawyer.

The opinion is available here.