Everything started on 7 May 2003 when a local newspaper, Gazeta Kościańska, published a non-authorised extract of an interview with a local member of parliament. The MP refused to authorise the text of the interview written by the editors and kept blocking its publication. Jerzy Wizerkaniuk, editor-in-chief of Gazeta Kościańska, decided to publish an extract of the interview and photos taken during the conversation but without the MP’s authorisation.
The case was brought to a court of law, where the judge found the reporter guilty and concluded that the journalist was acting with an intention to break the law, although his motivation was to fulfil his journalistic duties by presenting the interview to the public. Due to that latter factor, the court issued a judgment of conditional discontinuation of penal proceedings and ordered the reporter to make a symbolic payment to a charity organisation.
Battle before Constitutional Tribunal and Dissenting Opinion of Prof. Rzepliński
However, the editor-in-chief of Gazeta Kościeńska did not give up and decided to bring the case to the Constitutional Tribunal. The Constitutional Tribunal Judges were to examine whether the regulations of the Press Act of 1984, providing for a fine or restriction of liberty for reporters and publishers who will not request their interviewees to authorise their interviews, do not contradict the principle of freedom of speech guaranteed by the Constitution of the Republic of Poland of 1997.
During the proceedings before the Constitutional Tribunal opinions were requested from the Polish Commissioner for Human Rights, Attorney General, and the Speaker of the Sejm, the lower house of the Polish Parliament, who jointly concluded that the authorisation obligation contradicts the Constitution. However, the Constitutional Tribunal, at that time chaired by Dr Bohdan Zdziennicki, ruled that the regulations of the act were compliant with the Constitution of the Republic of Poland. The judgement of the Tribunal contained a dissenting opinion of Prof. Andrzej Rzepliński, which read:
“The regulations appealed against constitute unnecessary and excessive interference of the legislator in the freedom of speech in the name of protecting personal rights of an individual. The regulations appealed against were not essential for the protection of those rights already at the moment they were passed and are even more unconstitutional in a democratic state under the rule of law.”
Act of 1984 non-compliant with the European Convention on Human Rights
Jerzy Wizerkaniuk decided to continue his battle and sued the Republic of Poland before the European Court of Human Rights in Strasbourg. On 5 July 2011 the Court in Strasbourg accepted the reporter’s appeal and ruled that the regulations of the Polish Press Act did not comply with the European Convention of Human Rights.
The Court in Strasbourg stated that the provisions of the Press Act “grant the interviewees an unlimited right to prevent a reporter from publishing an interview deemed problematic or critical, regardless of how true or accurate the interview is” and “may make reporters avoid asking penetrating questions fearing that their interviewee may later block publication of the entire interview after refusing to authorise it or choose interviewers at their discretion to the detriment of the quality of the public debate.”
The description of the draft of amendments to the press act, supervised, on behalf of the Ministry of Culture and National Heritage, by deputy minister Jarosław Sellin, contains the following statement: “the draft of the new act introduces a detailed regulation applicable to authorisation and a new article, 14a, is devoted to that institution. The proposed section 1 preserves the current principle according to which a reporter is not allowed to refuse an interviewee to authorise the literally quoted statement. The draft also preserves the current exception according to which authorisation is not required for statements which have already been published.”