CEDH · CASELAW;COMMUNICATEDCASES;ENG — 30 mars 2020

.s800EAC49 { font-size:12pt } .s379BC09C { margin-top:36pt; margin-bottom:0pt; text-align:right } .sBB9EE52A { font-family:Arial } .s10950C61 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify } .s5E1364CA { margin-top:0pt; margin-bottom:12pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s339D85E6 { margin-top:0pt; margin-bottom:14pt; text-align:center; page-break-inside:avoid; page-break-after:avoid } .s665E407E { margin-top:66pt; margin-bottom:14pt; text-align:center; page-break-inside:avoid; page-break-after:avoid } .s29100277 { font-family:Arial; font-weight:bold } .sA36B60A1 { font-family:Arial; font-style:italic } .s83BE5C30 { font-family:Arial; font-size:8pt; vertical-align:super } .s3AAE10DF { margin-top:14pt; margin-bottom:12pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s3CA22BA { font-family:Arial; text-transform:uppercase } .sA1D3DA2E { margin-top:0pt; margin-bottom:0pt; text-align:justify } Communicated on 30 March 2020 Published on 25 May 2020   FIRST SECTION Application no. 15355/14 Wojciech KRYSZTOFIAK against Poland lodged on 10 February 2014 STATEMENT OF FACTS 1.     The applicant, Mr Wojciech Krysztofiak, is a Polish national, who was born in 1963 and lives in Łobez. He is represented before the Court by Ms   Bychawska-Siniarska and Ms D. Głowacka, lawyers from the Helsinki Foundation for Human Rights, practising in Warsaw. 2.     The facts of the case, as submitted by the applicant, may be summarised as follows. 3.     The applicant, who holds a PhD degree, is employed as a professor at the Szczecin University. He specialises in the field of the development and the current condition of science. He runs an internet blog on the portal of Newsweek, one of the main weekly magazines in Poland. 4.     On 7 February 2012 and 13 February 2013 the applicant published the series of two articles, entitled “Polish universities. Naked sad truth” ( Polskie uniwersytety. Naga, smutna prawda ). In these articles, the applicant presented his ranking of Polish higher education establishments, as he explained, drawing on the work of the Spanish National Research Council, the largest public institution dedicated to research in Spain and the third largest in Europe. 5.     In respect of several universities, including the Warsaw School of Arts ( Wyższa Szkoła Artystyczna ), the applicant essentially commented that the students did not reach the higher education level. He also referred to that group of schools in the following terms: “the black list of higher education schools” ( czarna lista szkół wyższych ), “educationally or scientifically worthless” ( naukowo bezwartościowa ), “[they] cannot teach any student anything serious” ( nie mogą niczego poważnego nauczyć studenta ), and “86% of Polish higher education schools lie” ( w 86% polskich szkół wyższych dochodzi do najzwyklejszego ściemniania ). 6.     The applicant wrote to those worst-ranked schools, asking them to make improvements. 7.     On 20 January 2013 the same articles were republished, this time in print, in the magazines Angora and Ochroniarz. 8.     On 28 February 2013 the Warsaw School of Arts applied to the court for preliminary injunction, asking that the applicant be barred from any unconsented use of the school’s name in his publications. 9.     On 15 April 2013 the Szczecin Regional Court ( Sąd Okręgowy ) granted the preliminary injunction sought (under Articles 730 1 and 755 of the Code of Civil Procedure), barring the applicant for one year from spreading and publishing in mass media and the internet, any content which would damage the school’s good reputation. In particular, the applicant was prohibited from questioning the quality of the school’s teaching, referring to the school as one of the worst in the world or in Poland, or with any of the terms which the applicant had used in his articles described above. The domestic court did not grant the school’s application in so far as it sought that the applicant be barred from calling on the school to close down or to refrain from writing about the school in any of his future publications. Likewise, the breach of the injunction was not under pain of fine. 10.     It the reasoning of its decision on preliminary injunction, the domestic court observed that the Warsaw School of Arts had substantiated its claim against the applicant and its interests in obtaining the interim protection. It further found it likely that the applicant through his publications had indeed damaged the reputation of the school. The domestic court thought that not granting the injunction sought could cause an irreversible damage in the school’s property. The injunction was, in the court’s view, justified also in light of the applicant’s negative reaction to the school’s appeals for cessation of his harmful activities. Following the statutory test for injunctions, the court concluded that the injunction would not defy an important public interest because the latter called for thorough and true information, whereas the information contained in the applicant’s article raises serious doubts as to the applicant’s diligence. To that end, the court observed that the impugned ranking of universities followed a single assessment criterion which undermined any definite negative opinion of the school. 11.     The domestic court did not grant the remainder of the application sought. In particular, it considered that barring the applicant from referring to the Warsaw School of Arts in his future publications would have been disproportionate and unnecessary. 12.     On 13 May 2013 the Warsaw School of Arts sued the applicant and the editors of Agora and Ochroniarz for the infringement of personal rights. 13.     The applicant lodged an interlocutory appeal against the preliminary injunction decision, arguing that it had infringed on his freedom of expression, as his article had been prepared with all diligence and served an important public purpose. He also argued that the impugned decision was issue in result of proceedings which were not contradictory or fair. 14.     On 30 July 2013 the Szczecin Court of Appeal ( Sąd Apelacyjny ) dismissed that interlocutory appeal. The appellate court disagreed that the injunction breached the applicant’s constitutional freedom of speech, in particular in light of its temporary nature. The court observed that the injunction procedure was inherently summary and based only on the allegations brought by the party seeking the interim relief. As a safeguard, the injunction was necessarily a part of a fully contradictory judicial procedure which would follow. The applicant would have the opportunity to make his case then in compliance with the principles of fair trail and equality of arms. The appellate court also made a general observation that the press, albeit uncontestably, a public watchdog, was not entitled to infringe on someone’s good name and reputation. Ultimately, the court upheld the conclusions of the first-instance court that all the elements of the statutory test for granting an injunction had been met in the circumstances of the case and that the injunction in its scope did not pose an excessive burden on the applicant. 15.     That decision was served on the applicant on 12 August 2013. 16.     On 17 June 2014 and 24 July 2015 the trial court issued decisions extending the operation of the original preliminary injunction, and thus barring the applicant from making mass media publications damaging the good name of the school, each time for the period of one year. 17.     The applicant did not lodge interlocutory appeals against the above ‑ mentioned decisions. 18.     On 20 September 2016 the Łódź Regional Court delivered a judgment on the merits, in which it ordered the applicant to: (i) cease activities damaging the good name of the Warsaw School of Arts, namely referring to the school in his mass media and internet publications with the terms as mentioned in paragraph 5 above and other terms undermining the public confidence for the school or calling onto potential students not to apply to the school; (ii) remove the applicant’s impugned article from the Newsweek’s blog, from Agora and Ochroniarz ; (iii) publish an apology; and (iv) pay to the plaintiff 40,000 Polish zlotys (PNL, approximately 10,000 euros, EUR). 19.     The appeal against that judgment was lodged by two of the applicant’s co-defendants, the editors-in-chief of the printed magazines. The subsequent course of these proceedings is unknown to the Court. 20.     On 27 April 2018 the Łódź Regional Court reject the applicant’s own appeal as lodged out of time. COMPLAINT The applicant complains under Article 10 of the Convention that the imposition and the extension of the preliminary injunction, barring him from publishing criticism of the Warsaw School of Arts, constituted a disproportionate interference with his freedom of expression. QUESTIONS TO THE PARTIES 1.     Has the applicant exhausted all effective domestic remedies, as required by Article   35 §   1 of the Convention?   2.     Has there been a violation of the applicant’s right to freedom of expression, in particular her right to impart information, contrary to Article   10 of the Convention?