Quotations Without the Consent of the Interviewee
ECtHR 5 July 2011, 18990/05 (Wizerkaniuk/Poland)
A Member of Parliament was interviewed by journalists of a local
Polish newspaper. The interview was recorded. When the article was
presented to the Member of Parliament he refused to grant his
authorization for the publication of the interview. The newspaper
published the interview anyway. Subsequently, the chief editor,
Wizerkaniuk, was convicted under criminal law to pay a penalty of
approximately € 250 to a charity. Wizerkaniuk filed a complaint
about this to the Polish Constitutional Court and to the European
Court of Human Rights.
Constitutional Court: Privacy Prevails
The Constitutional Court deemed the complaint to be
unfounded; the restriction of the freedom of expression was
justified from the point of view of privacy protection. Moreover,
the obligation to verify serves the public interest, as the public
can be sure that the quotations are authentic. Finally, the Court
ruled that the restriction of the freedom of expression was not so
bad, because a journalist is indeed free to publish the interview
in his own words without prior consent, as long as he does not
quote the interviewee verbatim. Therefore, the Polish
Constitutional Court considered the Press Act not to be in conflict
with the Constitution.
Politicians and Criticism
The European Court of Human Rights (ECtHR) reached a
different opinion. First of all, the ECtHR criticized the fact that
the chief editor was criminally convicted purely for violating the
rule that somebody had been quoted without consent, without the
contents of the article playing a role. For instance, it was not
relevant to the criminal case whether the statements were reflected
accurately and that the interviewee was a politician. The ECtHR
deemed this fact alone to be non compatible with the established
case law of the Court, which consistently emphasises that
protection granted to politicians against criticism is much
narrower than that applicable to all others.
Chilling Effect
In addition, the consequence of the Polish Press Act is
that an interviewee, without giving reasons, may refuse his consent
for publication or may delay publication by not responding within a
reasonable term. The ECtHR considered – not for the first time –
that news is a perishable commodity and that a journalist cannot in
principle be required to defer publishing information without
compelling reasons. Furthermore, according to the ECtHR, there is a
chilling effect on the exercise of the journalistic profession,
since the law could make journalists avoid putting probing
questions for fear that their interlocutors might later block the
publication. The ECtHR pointed out that, if necessary, protection
of the reputation/privacy (Article 8 of the ECHR) can also be
reached by payment of damages in arrears or by placing a
rectification instead of by obtaining prior consent.
The solution advocated by the Polish Constitutional Court that
if the interviewee refuses consent his words will not be reflected
verbatim but in the words of the journalist, was considered
paradoxical by the ECtHR. After all, that means the more truthfully
the journalist reflects the words of the interviewee, the more he
risks a criminal conviction.
No Interference Prior to
Publication
In this case, the ECtHR has come to the unanimous opinion that
Article 10 of the ECHR has been violated. After the Mosley case
earlier this year – in which the Court ruled that theUnited Kingdom
had not violated the privacy rights of Mosley under Article 8 of
the ECHR and that privacy victims do not have a right to prior
inspection of publications in which they feature – with this
judgment the ECtHR has emphasized once again the importance of a
free press, without mandatory interference of interested parties
prior to publication.