Facts and opinions: Kita v. Poland

Kita v. Poland, decided a few days ago by the European Court of Human Rights, further elucidates the statement of fact vs. statement of opinion dichotomy that bedevils so many domestic courts. The following paragraphs are interesting:

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42. Turning to the facts of the instant case, the Court notes that the applicant had clearly written and distributed the impugned article in the course of an ongoing election campaign. The targets of the applicant's criticism were the president and named members of the City Council Board.

43. It is certainly true that the article at issue reflected a rather critical approach to the work of the local politicians. In this respect the Court reiterates that in a democratic society, public authorities and their representatives expose themselves in principle to the permanent scrutiny of citizens and that everyone must be able to draw public attention to situations that they consider unlawful provided that they do so in good faith (see Kwiecień v. Poland, no. 51744/99, § 54, ECHR 2007-).

44. As regards the categorisation of the applicant's statements the Court observes that the Polish courts unreservedly qualified all of them as statements which lacked any factual basis without examining the question whether they could be considered to be value judgments.

45. While it is true that some of these statements, such as “the municipality had received subsidies from the State for transport of children to schools” or “the employees of the municipal educational institutions had not received special allowances” could be considered statements which lacked a sufficient factual basis, the Court notes that the thrust of the applicant's article was to cast doubt on the suitability of the local politicians for public office. It related to issues of public interest and concerned specific acts of the local municipal councillors carried out in the exercise of their public mandate. The Court further considers that the article also included statements which could reasonably be considered value judgments, such as “H. O. had not acted to the benefit of the school employees” or “teachers did not claim the allowance as they were afraid of losing their jobs”.

In the circumstances of the present case it does not seem that the applicant acted in bad faith. Having regard to the above the Court considers that the applicant's statements formed part of a debate on matters of public interest.

46. In any event, the Court would observe that the distinction between statements of fact and value judgments is of less significance in a case such as the present, where the impugned statements were made in the course of a lively political debate at local level, and where the members of the community should enjoy a wide freedom to criticise the actions of a local authority, even where the statements made may lack a clear basis in fact (see Lombardo and Others v. Malta, no. 7333/06, § 60, 24 April 2007).

47. As regards the reasons adduced by the domestic courts to justify the interference the Court observes that they have failed to recognise that the present case involved a conflict between the right to freedom of expression and the protection of the reputation and the rights of others and so did not carry out the relevant balancing exercise (see, mutatis mutandis, Keller v. Hungary (dec.), no. 33352/02, 4 April 2006). Nor did they give any consideration to the fact that the limits of acceptable criticism of the members of the City Council Board – W.M., H.O. and K.S. were wider than in relation to a private individual.

48. Furthermore, the Court notes that in none of their decisions did the domestic courts quote passages from the applicant's article or particular statements that he had made but merely considered the general meaning of his article (see paragraphs 17 and 21 above)."