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Wegrzynowski and Smolczewski v. Poland (Application no. 33846/07) is The European Court's of Human Rights (ECtHR) judgement from 16th July 2013, that deals with right to respect for private life and reputation in the Internet and (unmentioned directly in the ruling) so called, right to be forgotten. The case concerned the complaint by two Polish lawyers, who argued that that a newspaper article, which had been found by the Polish courts to be based on insufficient information, breaching their rights and damaging to their reputation, should not be accessible to the public on the newspaper’s, Rzeczpospolita, website. The complainants demanded from the newspaper removing aforementioned article from its website and publishing an apology. Both instances of Polish civil courts dismissed the case indicating i.e. that removing the article from the website would amount to censorship and to rewriting history.

Facts
On 2 December 2000 the national daily newspaper Rzeczpospolita had published an article about the corruption in the Silesian Voivodeship Office, “The Voivode in the Web” (“Wojewoda w Sieci”). In the same article, authors - Bertold Kittel and Anna Marszałek – wrote that Tadeusz Smolczewski and Szymon Węgrzynowski, prominent Silesian lawyers had taken  advantage of their positions at the expense of the public purse by obtaining unjust benefits from the manner in which they had carried out their professional roles as liquidators of State-owned companies in bankruptcy. They have supposedly made a fortune by supporting shady business deals, in which the aformentioned politicians were involved.

The lawyers had filed a claim for the protection of their personal rights arguing that the information published by the newspaper concerning themselves were untrue. On 8 May 2002 the Warsaw Regional Court had acceded to the applicants claim underlining that the  journalist’s allegations were based on gossips, and not evidence. Moreover, the court observed that they failed to contact the applicants in the reason to confront them with allegations. In consequence allegations had not any credible factual basis. The court ordered the journalists and the editor-in-chief to pay, jointly, PLN 30,000 to a charity and to publish an apology in the newspaper. The defendants made an appeal but the Court of Appeal had upheld the sentence from the first instance.

Rzeczpospolita newspaper published an official apology and the journalists and the editor-in-chief payed the awarded fine. Two years after winning the case the lawyers had found out that the article which contains untrue information about themselves is available at the newspaper’s internet archive and brought another defamation lawsuit against Rzeczpospolita. They argued that the article’s presence on the Internet had breached their rights in the same way as the article in the print newspaper had and wanted the court to order the newspaper to take down the article from its website and to publish another written apology.

The court however dismissed the claim stressing out that removing of the article from the internet would amount to censorship and to rewriting history. Moreover, it would run counter to the principles of archiving. The court also pointed out that allowing the applicant’s claim to have a new apology published would not offer adequate protection to them. However, if they demanded the Internet publication to be supplemented by a footnote, or a link informing a reader about the previous judgments, the court would have given serious consideration to such a request. Applicants appealed but the judgment was upheld in the second instance, so one of the lawyers filed a cassation appeal before the Supreme Court. The cassation appeal was dismissed.

After exhausting all possible legal steps before the national courts, both lawyers filed an application to the European Court of Human Rights, complaining that their rights to respect for their private life and reputation protected by article 8 of European Convention on Human Rights have been breached.

Judgement
The European Court of Human Rights unanimously ruled that the Polish courts havenot failed to protect Article 8 of the European Convention on Human Rights in this case and stressed out that it struck a fair balance between the public’s right to access to information on the one hand, and the applicant’s right to have his reputation protected on the other. The Court stated that completely removing the contested article from the newspaper’s archive would have been disproportionate and made a similar remark as the Polish courts that the applicant had not requested any other, more proportionate way of protection of his rights in the form of a reference to the judgments in his favour to be added to the article online. Moreover, the Court took the Polish court’s argumentation further and emphasized that it was not the role of judicial authorities to engage in rewriting history by ordering the removal from the public domain of all traces of publications which had in the past been found, by final judicial decisions, to amount to unjustified attacks on individual reputations. It also stressed out that the public has a legitimate interest to access public Internet press archives and this interest is protected under Article 10 of the Convention. Therefore the Court sentenced what follows: A limitation on freedom of expression for the sake of Mr Smolczewski’s reputation would have been disproportionate under Article 10. Accordingly there had been no violation of Article 8.

Significance
Wegrzynowski And Smolczewski v Poland ruling was one of the first cases brought to the international judiciary level concerning an ambigous balance between freedom of expression and the right to protect privacy and reputation on the internet. The unprecedented development of information technologies and never known before access to information worldwide created a new context for human rights protection and completely new issues, such as problem with dealing with misleading, defamatory information on the one hand and avoiding the risk of creating dangerous mechanisms, that could possibly lead to censorship of the internes. This ruling shows one of the possible solutions on how to fight untrue materials published in digital media. As The European Court of Human Rights suggested, the proportional solution in such a cases might be not deleting this kind of content, but supplementing it with reference to a court’s judgement.