CEDH · CASELAW;COMMUNICATEDCASES;ENG — 14 novembre 2024

.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 } .s9D48DD53 { margin-top:6pt; margin-left:21.25pt; margin-bottom:6pt; text-indent:7.1pt; text-align:justify; font-size:10pt } .s7ED160F0 { text-decoration:none } .sC36A6361 { font-family:Arial; color:#000000 } Published on 2 December 2024   FIRST SECTION Application no. 459/20 FUNDACJA INSTYTUT REPORTAŻU against Poland lodged on 13 December 2019 communicated on 14 November 2024 SUBJECT MATTER OF THE CASE The case concerns the legal consequences faced by the applicant foundation for calling for a consumer boycott of a beer brand. The applicant foundation, Fundacja Instytut Reportażu , is a non ‑ governmental organisation which launched the “Journalists Without Discrimination” initiative, with the statutory aim of, inter alia , reacting to discrimination against people from minority groups. The applicant foundation operates a bookstore in Warsaw, which also sells beer, including beer C., at the relevant time produced by the brewing company B.R.J. and distributed by its sister company, P.R. The Chief Executive Officer (CEO) and the sole shareholder of B.R.J., who was also the main shareholder of P.R., was M.J. On 17 September 2014 M.J. published a news item on his Facebook profile, in which he condemned a famous boxer supporting adoption of children by same-sex couples. M.J. wrote: “Boxing is supposedly harmful and this is irrefutable proof of that! I know that it is no longer possible, but I wish you, D., a Mommy with a pecker ( mamusi z fujarką ) instead of breasts, you will have something to suck!” On 21 September 2014 the applicant foundation reacted by publishing a news item on its Facebook profile. In the text it made, inter alia , the following statements: “The great trashing, Mr C.! ( wielkie lanie, panie C. ) We’re pouring out beer C.! (...) We don’t want to drink it anymore. (...) Because we don’t like what the owner of this brewery says publicly about people. But we have a large supply of C. and (...) we’ll ceremoniously pour it out. (...) anyone who thinks this is wasteful will be able to drink beer from a homophobe for a very symbolic fee. (...) Someone wants to copy our idea? No problem” On 22 September 2014 the beer produced by B.R.J. was publicly spilled out in front of the applicant foundation’s bookstore. Subsequently, other establishments declared support for the boycott of the beer. On 28 November 2014 B.R.J. and its sister company, P.R., filed a lawsuit against the applicant foundation, relying on Section 15 of the Unfair Competition Act ( Ustawa o zwalczaniu nieuczciwej konkurencji ), demanding payment of 100,000 Polish zlotys ((PLN) – approximately 25,000   euros (EUR)) to a cultural institution and publication of an apology. The plaintiff companies identified the applicant foundation’s actions as hindering access to the market and argued that the applicant foundation had successfully called for a consumer boycott. In response to the lawsuit, the applicant foundation relied on, inter alia , freedom of expression in connection to the right to defend important social values. On 21 March 2016 the Warsaw Regional Court granted the claim, ordered the applicant foundation to pay PLN 5,000 (approximately EUR 1,200) to a cultural institution and to publish an apology. The court stressed that the private opinions of M.J., a natural person, should not be perceived as a reason to buy, or not, the products of the plaintiff companies. The court assessed that calling for a boycott of a beer brand could not be justified by a necessity of bringing social attention to the statements of M.J. The court reasoned that criticizing socially harmful behaviour, including opposing hate speech and criticizing homophobic statements deserved approval. However, it was irrelevant to the outcome of the proceedings as the purpose of the boycott was economic, and aimed at limiting or eliminating the plaintiff companies’ capability to operate on the market. The applicant foundation appealed, relying on, inter alia , Article 54 of the Polish Constitution which protects the freedom of expression. It stressed that the boycott had an economic effect, not purpose. On 21 March 2018 the Warsaw Court of Appeal altered the judgment in that it ordered the applicant foundation to publish an apology and dismissed the remainder of the claim. The court stressed that the applicant foundation could have used other, lawful measures to manifest its disapproval with M.J.’s statements. The judgment was served on the applicant foundation’s representative on 14   June 2019. The applicant foundation complains under Article 10 of the Convention that its right to freedom of expression was violated. It further claims that the impugned decisions were not prescribed by law or necessary in a democratic society in terms of Article   10 §   2 of the Convention. QUESTION TO THE PARTIES Was the interference with the applicant’s freedom of expression, within the meaning of Article 10 § 1 of the Convention, prescribed by law, necessary and proportionate to the legitimate aim pursued in terms of Article 10 § 2 of the Convention (see, among others, Perinçek v. Switzerland [GC], no.   27510/08, §§ 196 and   231, ECHR 2015 (extracts); Baldassi and Others v.   France , nos. 15271/16 and 6 others, §§ 63-64, 11 June 2020; and, mutatis mutandis , Baka v. Hungary   [GC], no.   20261/12 , §   159, ECHR   2016)?