Journalist convicted for the defamation of a doctor and a hospital for commenting in a newspaper! Violation of the freedom of expression
JUDGMENT
Banaszczyk v. Poland 21.12.2021 (app. no. 66299/10)
SUMMARY
Freedom of expression. Issues of public interest. Conviction of a journalist by a criminal court for his articles against a hospital and a doctor.
The applicant journalist of a local newspaper, in an article he published, accused a well-known hospital doctor and criticized the management of the hospital and the quality of the treatment provided to it. He was convicted of defamation and fined. However, after the publication of the article, an investigation was carried out in the hospital and the mentioned doctor was convicted for endangering a patient’s life.
The ECtHR stated that the basic principles concerning the “necessity of an intervention in a democratic society” were well established in the case law of the Court of Justice. The issue at hand was very important for a community as it concerned the health services provided by a public hospital.
The Court found that the national courts had convicted the applicant, despite the fact that he had based the allegations in his articles on sufficient evidence, such as the testimonies of relatives of patients and nursing staff. It recalled that the nature and severity of the sanctions imposed were factors to be taken into account when measuring the proportionality of an infringement of the right to freedom of expression enshrined in Article 10. It therefore considered that the reasons given by the national courts to justify the applicant’s conviction could not be considered relevant and sufficient and therefore found a violation of freedom of expression (Article 10 of the ECHR).
The ECtHR awarded an amount of 6,280 euros for pecuniary damage and non-pecuniary damage as well as costs.
PROVISION
Article 10
PRINCIPAL FACTS
The applicant, Jan Banaszczyk, is a Polish national who was born in 1944. He lives in Kętrzyn
(Poland). At the time of the events in question he was the editor of a free local bi-weekly newspaper.
The case concerns Mr Banaszczyk’s criminal conviction for slanderous defamation of a health
professional and head of a public hospital (Doctor M.S.) following the publication, in 2005, of a press
article in which he criticised the hospital’s management and the quality of treatment provided in it.
The applicant illustrated his statements by quoting examples involving Dr M.S.’s patients.
The hospital and Dr M.S. both filed a complaint against the applicant, who was ordered by the
domestic courts to pay a criminal fine in 2010; they considered that his comments were liable to
destroy the public’s trust in M.S.’s medical abilities. An investigation was subsequently carried out,
and this doctor was convicted of the offence of endangering the life of a patient and sentenced, in
2011, to a suspended term of imprisonment.
Relying on Article 10 (freedom of expression) of the European Convention on Human Rights,
Mr Banaszczyk complains about his criminal conviction for slanderous defamation of Dr M.S.
THE DECISION OF THE COURT…
The Court notes that it is not disputed in the present case that the applicant ‘s conviction constituted an interference with the exercise of his right to freedom of expression guaranteed by Article 10 § 1 of the Convention. The basic principles concerning the ‘necessity in a democratic society’ of an intervention are well established in the case law of the Court of Justice.
The Court noted that the applicant had been punished for his comments aimed at the integrity of Dr. M.S., and therefore also belonged to his “private life”. The Court reiterated that the outcome of the action could not, in principle, vary according to whether it was submitted to it in accordance with Article 10 of the Convention by the person who published the comments in question or from the point of view of Article 8 of the Convention. , by the subject of this report. Indeed, these rights deserve a priori equal respect.
In the present case, the Court observed that the applicant had published in a local newspaper a number of articles concerning K.’s Regional Hospital. In order to clarify what he said about the hospital, the applicant cited some examples of patients being treated at the aforementioned hospital, including Dr.’s patients. MS.
The Court ruled that the disputed publication concerned an issue which was undoubtedly important to a community. He recalled in this context that Article 10 § 2 of the ECHR leaves little room for restrictions on freedom of expression in the field of political speech or matters of public interest. The Court noted that Dr. M.S. was targeted as a health professional with formal managerial responsibilities in a public hospital.
The Court notes that the national courts found that the offense of defamation against M.S. consisted of excerpts from the article in question (“suspicious deaths and mutilations” and “the situation in the hospital is becoming dramatic, as evidenced in particular by the incomprehensible deaths of many people”). It noted in particular that the trial court had ruled that all the allegations made had not been substantiated and that they had damaged the defendant’s professional reputation.
The national courts further held that by publishing the articles as formulated without sufficient evidence, the applicant had violated journalistic ethics. They decided that, given their wording, the disputed observations could undermine public confidence in M.S.
The Court noted that this investigation subsequently led to the criminal prosecution of M.S. for the offense of endangering the life and health of F.Z. and another patient and that M.S. convicted of manslaughter against F.Z. with a custodial sentence. It also observed that K.’s hospital had subsequently been declared politically responsible for the damage caused by F.Z.’s hospitalization.
The Court noted that the national courts had accused the applicant of failing to adequately investigate certain information concerning Mr M.S. and reduced the ability to verify the information in his possession. He further noted that the applicant had taken some measures to this end, including talking to relatives of the patients involved and members of the hospital staff, and had sought to cross-reference his information with those responsible for the hospital. In those circumstances, he considered that the applicant had done what he could reasonably be asked to do to verify the information and that, consequently, his statements in question did not contain any indication of his bad faith.
The Court recalled that the nature and severity of the sanctions imposed are factors which must be taken into account when measuring the proportionality of a violation of the right to freedom of expression enshrined in Article 10 of the Convention. In the present case, it observes that the applicant has been sentenced to a fine for defamation, which in itself gives a high degree of seriousness to the measures taken against him. It noted that the applicant was further ordered to make a donation, to apologize to M.S. and reimburse the costs of the proceedings (total amount PLN 754).
Although the sentence imposed on the applicant was significantly reduced in the appellate court, the Court considers that, as a result of the cumulative application of the above measures taken against him, the applicant was sanctioned which may have a chilling effect on someone like him, who had participated in the discussion on an issue of public interest for the local community. In the light of the foregoing, the Court considered that the reasons given by the national courts to justify the applicant ‘s conviction could not be regarded as relevant and sufficient.
The Court found a violation of freedom of expression (Article 10 of the Convention).
Just satisfaction: The ECtHR awarded an amount of 280 euros for compensation, an amount of 6,000 euros for non-pecuniary damage and an amount of 300 euros for costs and expenses.
