Information Note on the Court’s case-law No. 165
Węgrzynowski and Smolczewski v. Poland -33846/07
Courts’ refusal to order newspaper to remove articledamaging applicant’s reputation from its Internet archive: no violation
Facts – The applicants are lawyers who won a libel case against twojournalists working for the daily newspaper Rzeczpospolitafollowing the publication of an article alleging that they had made a fortuneby assisting politicians in shady business deals. Holding in particular thatthe journalists’ allegations were largely based on gossip and hearsay and thatthey had failed to take the minimum steps necessary to verify the information,the domestic courts ordered them and their editor-in-chief to pay a fine to acharity and to publish an apology. These obligations were complied with.
Subsequently, after discovering that thearticle remained accessible on the newspaper’s website, the applicants broughtfresh proceedings for an order for its removal from the site. Their claim wasdismissed on the grounds that ordering removal of the article would amount tocensorship and the rewriting of history. The court indicated, however, that itwould have given serious consideration to a request for a footnote or linkinforming readers of the judgments in the original libel proceedings to beadded to the website article. That judgment was upheld on appeal.
Law – Article 8: The Court declared the first applicant’s applicationinadmissible, as being out of time. As regards the second applicant, it notedthat during the first set of civil proceedings he had failed to make claimsregarding the publication of the impugned article on the Internet. The domesticcourts had therefore not been able to decide that matter. Their judgment,finding that the article was in breach of the applicants’ rights, had notcreated a legitimate expectation that the article would be removed from thenewspaper’s website. The second applicant had not advanced any arguments tojustify his failure to address the issue of the article’s presence onlineduring the first set of proceedings, especially in view of the fact that theInternet archive of Rzeczpospolitawas a widely known and frequently used resource both for Polish lawyers and thegeneral public.
As to the second set of proceedings, thesecond applicant had been given the opportunity to have his claims examined bya court and had enjoyed full procedural guarantees. The Court accepted that itwas not the role of judicial authorities to engage in rewriting history byordering the removal from the public domain of all traces of publications whichhad in the past been found, by final judicial decisions, to amount tounjustified attacks on individual reputations. Furthermore, the legitimateinterest of the public in access to public Internet archives of the press wasprotected under Article 10. It was significant that the domestic courtshad pointed out that it would be desirable to add a comment to the article onthe newspaper’s website informing the public of the outcome of the first set ofproceedings. This demonstrated their awareness of how important publications onthe Internet could be for the effective protection of individual rights and ofthe importance of making full information about judicial decisions concerning acontested article available on the newspaper’s website. The second applicanthad not, however, the addition of a reference to the judgments in his favour.
Taking into account all those circumstances,the respondent State had complied with its obligation to strike a balancebetween the rights guaranteed under Article 10 and under Article 8.
Conclusion: no violation (unanimously).
(See also Times Newspapers Ltd v. the United Kingdom (nos. 1 and 2),nos. 3002/03 and 23676/03, Information Note 117)
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