A Blatant Attack on Free Media

In a recent and shocking judgment of the first instance, a criminal court in Warsaw has found the Polish journalist Ewa Siedlecka guilty of criminal libel (defamation) for commenting on the organized campaign  of hatred against independent Polish judges. This account deeply resonates with my own personal experience. Toutes proportions gardeés, I should add, since Ms Siedlecka has done immeasurably more for the rule of law in Poland than I did, and has run much higher risks – and incurred higher personal costs.

Ewa Siedlecka, winner of numerous awards (including the 2017 Reporters’ without Borders Press Freedom Award for a series of publications about the Polish Constitutional Tribunal), has been writing for the last thirty years about law, judges, human rights and the rule of law. She was sentenced by the criminal division of the District Court in Warsaw for defamation of two judges holding high offices in the judiciary, nominated by the present Polish authorities. The judges brought her to trial under the infamous defamation provision of article 212 of the Penal Code. The basis for accusation was one Twitter entry and three op-eds published on the Polityka.pl website by Siedlecka.

The ruling in the case is a flagrant violation of journalistic freedom of expression and ignores the standards of the European Court of Human Rights in Strasbourg. It is also the most classic example of SLAPP (Strategic Lawsuit Against Public Participation), as Siedlecka is a well-known and very vocal critic of the current Polish government. In 2017, she reported to the prosecutor’s office against the then Prime Minister Beata Szydło for not publishing the judgments of the Constitutional Tribunal. She also brought a case in a civil court against the government for violation of privacy and freedom to practice the profession of journalist due to the lack of regulations in Poland required by the European Union allowing a citizen to find out whether he/she had been under surveillance by the authorities in the past.

Facts of the case

One of the judges who accuses Siedlecka is the president of the court and member of the neo-National Council of the Judiciary (a body dominated by people in power that plays a key role in the nomination and promotion of judges). The other is a judge of the illegally operating Disciplinary Chamber of the Supreme Court, used to harass judges who criticize the authorities and deemed by the CJEU as not meeting the criteria of an impartial court. Siedlecka commented on the scandal revealed in 2019, concerning an online campaign of hatred against independent judges, organized and supported by the authorities.

The background to the case is the struggle of the political authorities to take control of the judiciary, which has been ongoing in Poland since 2016. One of the ways in which the authorities operate are defamation actions, which are to deprive judges of public trust. One of the examples was a nationwide billboard campaign of accusations against the judges, financed by a state-run foundation. Hateful content also appears on the Internet, slandering specific judges. The @KastaWatch Twitter account has been especially active (up to now). In addition to hateful content, it published documents from the personal and confidential files of judges, including the results of inspections of their work, or information from disciplinary proceedings, as well as sensitive information on their personal life. There is no other probable source of such leaks than courts in which those judges work, the Ministry of Justice or the National Council of the Judiciary.

In March 2019 the affair was described by onet.pl, the biggest Polish news portal and, subsequently, by OKO.press, a fact-checking portal. Later, in subsequent texts, using internet analysis tools, it was proven which of the well-known judges, beneficiaries of government’s capture of the judiciary, had commented favorably or “passed on” hateful content on @KastaWatch. These judges were identified by their nicknames.

In August 2019, on the onet.pl portal, on the basis of material provided by a whistleblower with the nickname MałaEmi (at that time the wife of one of the judges involved in the hateful activities, and a prominent official in the Ministry of Justice), correspondence from WhatsApp was disclosed where persons identified by the names of the judges – including the two for whose alleged slander Ewa Siedlecka was sentenced – had urged to organize further harassment of the independent judges.

For several weeks, media throughout Poland were covering the hate affair known as the “troll farm in the Ministry of Justice”. However, the authorities swept it under the carpet: the Disciplinary Commissioner for judges stated that he did not see basis for any bringing charges. However, the Vice-Minister of Justice who was alleged to play a leading role in the „troll farm” resigned from his office, with no reasons given.

The case was reported to the prosecutor’s office by the judges attacked. But apart from interrogating the victims and asking Twitter and Facebook for the data enabling the identification of haters (with no responses provided), the prosecutor’s office, captured by the government and directed by Minister of Justice Zbigniew Ziobro, acting ex officio as a Prosecutor General, did nothing for two years. Meanwhile, the judges – the alleged haters of the “Kasta” group, brought lawsuits against journalists and the media who demonstrated their participation in the scandal. Thus, it is a journalist, Ewa Siedlecka, who is the first person in the whole affair against whom a trial took place. There were three hearings in the trial. The court rejected all the motions by the defense.

Charges

The charges concentrated mainly around the following accusations:

• insulting the two judges as “haters” on Twitter, which has demeaned them in the public opinion and undermined the trust needed to practice their profession (the definition of criminal defamation in the criminal code);
• in the text “Self-control, or the caste checks the caste”, accusing one of them by describing him as “a participant in a troll farm” and for participating in the stalking of other judges;
• in the text “The Sword of Damocles, or the power over power”, insulting one of the judges as “a participant in the hate group” and accusing him of participating in stalking other judges and taking away official documents.

Defence

The journalist argued that she acted honestly. She did not prejudge that the judges accusing her were haters, and she used careful phrases like “they are mentioned [in the press allegations]”. Apart from one entry on Twitter, a text from OKO.press was linked to her own text, precisely documenting the whole case. She explained that she had relied on the documented investigative publications from OKO.press and onet.pl. She did not ask the accusing judges (incidentally, mentioned only marginally in her texts) for their comments because their positions were widely known. And she quoted a written statement from one of them. She did not accuse them of stalking and removing from files any confidential documents, but rather she only wrote that such accusations could be pressed against the participants of the hate group.

Her texts were not informative or investigative, but had a character of commentary. She pointed out that her accusers are high-ranking state officials and can be subject to more severe criticisms because of the power they have. The disclosure of the hate scandal was very important from the point of view of public interest, since it could show the pathological ties between the executive and judiciary. In her comments, she tried to ensure that the matter was not swept under the carpet.

The Court judgment of 24 November 2021:

The court found her guilty of libel (art. 212 para 2 of the penal code) and insult (art. 216 para 2 of the penal code), committed while using public media. It considered her act particularly harmful to the society. The court quoted scholarly comments on the press law, arguing that a journalist should exercise particular diligence in collecting and using materials, especially checking the accuracy of the information provided or providing its source. It is also intended to protect the personal rights of others. Meanwhile, “the accused did not examine the truthfulness of the information herself. The material on which she relied, in the court’s opinion, did not allow the accused to make such statements.”

The court did not address any issues such as the oversight function of the media and the freedom of public debate. It sentenced the journalist to 3.000 PLN (ca 800 EUR) fines, 2.000 PLN for each of the accusing judges, and some additional legal fees.

My own case

I have my own experience with SLAPP before Polish courts (see here). But in contrast to Ms Siedlecka, I found in my legal trajectory in four courts (two defamation cases, both first instance and the appeal procedures) the judges of high integrity and legal knowledge. And they all ruled in my favour. All right, I hear you saying: whenever you win a case, you think a judge was right. Fair enough. So let me just encapsulate the core judicial arguments why I won both against PiS (Law and Justice party) which pressed a civil defamation case against me, for the contents of my Twitter comment, and against a state-run TVP which indicted me in a private criminal defamation case  based on my comments about their role in stirring hatred against the President of Gdansk who was eventually murdered. (The third case, a civil defamation case by TVP, is still pending).

The lengthy, sophisticated and well-argued judgments in these two cases, and in two instances (which make up four judgments in sum) were based on the European Convention of Human Rights and on the European Court of Human Rights case law, on Polish Constitution and the case law of Constitutional Tribunal (when that court was worth its name), and on the criminal code (Art. 212) and civil code (Art. 24), as the case may be. To summarize the argument, the special protection of freedom of speech was urged in all these judgments on three categories: (1) the subject-matter of the speech (whether it concerned the issues of high public concern), (2) the characteristics of the speaker (whether he, as in my case, was a commentator known for raising issues of public concerns due to his professional or civic involvement), (3) the characteristics of the „targets” of critical commentary: whether they are public figures, public officials or public institutions which must cope with a higher degree of critical scrutiny than private citizens do.

Under all these three criteria, my right to freedom of speech against PiS and TVP was vindicated. I cannot resist thinking that, under each of these three criteria, the speech by Ewa Siedlecka deserves all the more protection than my public statements did. The judgment against her is a shocking, shameful anomaly. It is an aberration which must be condemned. And removed, in the appellate procedure, or if it comes to the worst, in Strasbourg. Because there are still honest judges in Poland, and in Europe.