Changes to Interview Authorisation Rules May Seriously Stir Up Public Relations

Everything started on 7 May 2003 when a local
newspaper, Gazeta Kościańska,
published a non-authorised extract of an interview with a local member of
parliament. The MP refused to authorise the text of the interview written by
the editors and kept blocking its publication. Jerzy Wizerkaniuk, editor-in-chief
of Gazeta Kościańska, decided to
publish an extract of the interview and photos taken during the conversation
but without the MP’s authorisation.

The case was brought to a court of law, where the
judge found the reporter guilty and concluded that the journalist was acting
with an intention to break the law, although his motivation was to fulfil his
journalistic duties by presenting the interview to the public. Due to that
latter factor, the court issued a judgment of conditional discontinuation of
penal proceedings and ordered the reporter to make a symbolic payment to a
charity organisation.

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Battle
before Constitutional Tribunal and Dissenting Opinion of Prof. Rzepliński

However, the editor-in-chief of Gazeta Kościeńska did not give up and decided to bring the case to
the Constitutional Tribunal. The Constitutional Tribunal Judges were to examine
whether the regulations of the Press Act of 1984, providing for a fine or
restriction of liberty for reporters and publishers who will not request their
interviewees to authorise their interviews, do not contradict the principle of
freedom of speech guaranteed by the Constitution of the Republic of Poland of
1997.

During the proceedings before the Constitutional
Tribunal opinions were requested from the Polish Commissioner for Human Rights,
Attorney General, and the Speaker of the Sejm, the lower house of the Polish
Parliament, who jointly concluded that the authorisation obligation contradicts
the Constitution. However, the Constitutional Tribunal, at that time chaired by
Dr Bohdan Zdziennicki, ruled that the regulations of the act were compliant
with the Constitution of the Republic of Poland. The judgement of the Tribunal
contained a dissenting opinion of Prof. Andrzej Rzepliński, which read:

“The regulations appealed against constitute
unnecessary and excessive interference of the legislator in the freedom of
speech in the name of protecting personal rights of an individual. The
regulations appealed against were not essential for the protection of those
rights already at the moment they were passed and are even more
unconstitutional in a democratic state under the rule of law.”

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Act of
1984 non-compliant with the European Convention on Human Rights

Jerzy Wizerkaniuk decided to continue his battle and
sued the Republic of Poland before the European Court of Human Rights in
Strasbourg. On 5 July 2011 the Court in Strasbourg accepted the reporter’s
appeal and ruled that the regulations of the Polish Press Act did not comply
with the European Convention of Human Rights.

The Court in Strasbourg stated that the provisions of
the Press Act “grant the interviewees an unlimited right to prevent a reporter
from publishing an interview deemed problematic or critical, regardless of how
true or accurate the interview is” and “may make reporters avoid asking
penetrating questions fearing that their interviewee may later block
publication of the entire interview after refusing to authorise it or choose
interviewers at their discretion to the detriment of the quality of the public
debate.”

The description of the draft of amendments to the press act, supervised, on behalf of
the Ministry of Culture and National Heritage, by deputy minister Jarosław
Sellin, contains the following statement: “the draft of the new act introduces
a detailed regulation applicable to authorisation and a new article, 14a, is
devoted to that institution. The proposed section 1 preserves the current
principle according to which a reporter is not allowed to refuse an interviewee
to authorise the literally quoted statement. The draft also preserves the
current exception according to which authorisation is not required for
statements which have already been published.”

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