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Libel and Slander in the Polish Statutory Law and English Common Law

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Libel and Slander in the Polish Statutory Law and English Common Law STUDIES IN LOGIC, GRAMMAR AND RHETORIC 38 (51) 2014 DOI: 10.2478/slgr-2014-0040 Katarzyna Strębska University of Silesia WAGING WARS WITH WORDS – LIBEL AND SLANDER IN THE POLISH STATUTORY LAW AND ENGLISH COMMON LAW Abstract. This paper aims to investigate the differences between the concepts of libel and slander as understood by the Polish statutory and English common law. As it turns out, the above terms are not only divergent with regard to language (varying linguistic contexts) but also with regard to corresponding acts in the real world. Western cultures cherish such values as dignity, honour and self-fulfillment as the underlying rights of a citizen in democratic countries. The above terms are being constantly referred to in international treaties and conventions but the question which should be asked is whether they receive due attention in legal practice. As regards interpretation, not only in theory (which is rather scarce, espe- cially in common law), but also in practice (the court verdicts in cases dealing with libel and slander) the important issue is not how the defamatory state- ment makes the person referred to feel, but the impression it is likely to make on those reading it (McBride, Bagshaw, 2008 in: Quinn, 2007:209). The subsequent analysis of particular cases in the practical part supports the above claim. Although it is reiterated by the Polish legal academics that civil regulations are not sufficient to guarantee legal protection of dignity, there is an equal or even greater amount of supporters of the broadly conceived “freedom of speech”. The discussion might be summarized as involving the proponents of liberal and democratic policies on the one hand, and those who wish to avoid complete decriminalization of libel and slander and deem them necessary components of balance in a democratic state. Keywords: zniesławienie, zniewaga, libel, slander, cześć, defamation. Introductory remarks – human integrity as embraced in the constitution (on the example of the Constitution of the Republic of Poland) as well as in the Polish Civil and Penal Codes Human integrity understood as the underlying right of a citizen in demo- cratic countries receives due attention not only in international treaties but ISBN 978–83–7431–418–3 ISSN 0860-150X 197 Katarzyna Strębska is also guaranteed by the national laws. The Constitution of the Republic of Poland stipulates the following: “The inherent and inalienable dignity of the person shall constitute a source of freedoms and rights of persons and citizens. It shall be inviolable. The respect and protection thereof shall be the obligation of public authorities” (Journal of Laws as of 1997; No. 78, item 483). As we can further read in article 47: “Everyone shall have the right to legal protection of his private and family life, of his honour and good reputation and to make decisions about his personal life” (idem). In the Polish legal language, embracing the issue of integrity (under- stood as both “the inherent” part of a human being as well as the face and good reputation in the eyes of others) involves the use of such words as: “cześć”, “godność”, “dobre mienie”. As far as “cześć” is concerned, it is ap- plied to refer to both “the inherent” and the social aspect of integrity. The other two terms are used to refer to respectively: the inner and the social dimension of our worth as human beings. As emphasized by Igor Zgoliński in “Zniesławienie w polskim prawie karnym: zagadnienia teorii i praktyki” (“Zniesławienie in the Polish Penal Law: theory and practice”), paradoxically, complex legal protection against violations of honour are not so commonly accepted since public opinion endorses its decriminalization (Zgoliński, 2013:12). The provision that is quoted most often to support the above claim is art. 54, sections 1 and 2 of the Constitution, which sanctions the freedom of speech: 1. “The freedom to express opinions, to acquire and to disseminate infor- mation shall be ensured to everyone”. 2. “Preventive censorship of the means of social communication and the li- censing of the press shall be prohibited. Statutes may require the receipt of a permit for the operation of a radio or television station” (idem). However, since the legal principle “lex specialis derogat legi generali” applies to all legal disciplines, we need to resort to the laws of the lower level which provide a more detailed lexical “landscape”. The infringement of personal rights is regulated in articles 23–24 of the Polish Civil Code. Both “zniesławienie” and “zniewaga” are regulated in Chapter XXVII entitled: “Offences against Honour and Personal Inviolability”. Infringement of personal rights in the Polish Civil Code In pursuance of article 23 of the Polish Civil Code, “a man’s personal rights, notably his health, liberty, dignity, freedom of conscience, family – name or pseudonym, image, privacy of correspondence, inviolability of home and scientific, artistic, inventive or rationalizing achievement, shall be pro- 198 Waging Wars With Words – Libel and Slander in the Polish Statutory Law... tected by civil law independently of the legal protection contemplated by other provisions (Journal of Laws as of 1964, No. 16 item 93)”. What interests us here is first and foremost the notions such as: “liberty”,“dignity”, “family- name” and “image” which are conceptually related to Polish “cześć”. As we can further read in article 24, section 1, a person who claims that his/her personal rights have been violated may seek to redress the action complained of, unless it is not unlawful. In the case of the infringements already committed, he may also require the wrong- doer to remove the results of the infringements and especially to make an appropriate declaration in an appropriate form (idem). A declaration specified in the above article would most often refer to a press announcement. The unlawful character of the act may be questioned if the defendant proves that he/she has been authorized to it, if the purpose is to ensure law and order or if the interest of the injured party does not merit legal protection (Gniewek, 2006:25, translation mine). As stressed by Zgoliński, dignity in the Polish Civil Code is understood as constituting the catalogue of personal rights and thus as a value of private nature (Zgolinski, 2013:13). Furthermore, the author emphasizes that the provisions of the civil law are not sufficient to guarantee legal protection since dignity is also of public character. This “public” nature of dignity is in turn regulated in art. 212 of the Polish Penal Code. “Zniesławienie” in the Polish Penal Code Let us now invoke the article 212, section 1 of the Polish Penal Code: Whoever imputes to another person, a group of persons, an institution or organisational unit not having the status of a legal person, such conduct, or characteristics that may discredit them in the face of public opinion or result in a loss of confidence necessary for a given position, occupation or type of activity shall be subject to a fine, the penalty of restriction of liberty or the penalty of deprivation of liberty for up to one year. The above article regulates the unlawful act referred to by one term in Polish: “zniesławienie” or “pomówienie”. According to a dictionary definition “pomawiać” is tantamount to “re- proach somebody with something, wrongly ascribe something to somebody, accuse, and impute something to somebody (Uniwersalny słownik języka polskiego, red. S. Dubisz, t. 3, s. 338, translation mine). “Pomówienie” takes both the oral as well as the written form. It might be encountered not only in the form of a writing but also as a printout, 199 Katarzyna Strębska a drawing, an offending comment made with the aid of mass media such as the radio, the television or the Internet (Marek, 2006:402). “Pomówienie” might evoke such aspects of human life as: compulsions (alcoholism, sexual deviations), unlawful conduct (e.g.: corruption, criminal activities), which are considered derogatory in the public opinion or which undermine confidence towards a person (idem: 402). What should be emphasized here is that under the Polish law, the assessment of the harmful effect of “zniesławienie” is always done in the context of requirements or expectations connected with the occupied office (e.g.: a teacher, a clerk, a doctor, a journalist, an actor, a politician etc.) (idem: 402). As stressed above in the first section, criminalization of “libel” is some- times being questioned as violating the freedom of speech. However, as ob- served by Zgoliński, we are nowadays witnessing the deteriorating state of public debate in mass media, in particular with regard to politics. The lan- guage becomes more and more aggressive which results in a poor state of Polish democracy and public culture (Zwolinski, 2013:15). Thus, words are uttered without paying regard to their meaning. There is a constant flow of information on the one hand, but on the other, we are running out of means to control the weight and the effect these words might have on the potential readers/listeners. Such a status quo might impercep- tibly lead to a state of unlawfulness or even anarchy where slanderers and defamers do not bear any responsibility for the acts committed and will carry on with impunity. “Zniewaga” and its regulation in the Polish statutory law Let us now consider the legal implications of article 216, section 1 of the Polish Penal Code which discusses the issue of insult (in Polish “zniewaga”). In pursuance of it: Whoever insults another person in his presence, or though in his absence but in public, or with the intention that the insult shall reach such a person, shall be subject to a fine or the penalty of restriction of liberty. Similarly to libel and/or slander, the understanding of the term “zniewaga” in the colloquial speech slightly differs from its understanding by the law.
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