4
WĘGRZYNOWSKI AND SMOLCZEWSKI v. POLAND JUDGMENT
would not offer adequate protection to the applicants. Had they sought an
order in the present set of proceedings that the Internet publication be
supplemented by a footnote or a link informing a reader about the
judgments of 8 May 2002 and 24 April 2003, or had they asked the court to
order the defendants to publish an apology on the newspaper’s website, the
court would have given serious consideration to such a request.
13. The court further noted that the applicants had already received
compensation in the first set of the proceedings. It was further stated that if
they had discovered circumstances relevant for the assessment of the case
but unknown to them during the first set of the proceedings, they should
have requested that the proceedings be reopened rather than bringing a new
civil case before the courts.
14. The applicants appealed. They argued that the case was important in
that it raised new issues which had hitherto not been addressed by judicial
practice. They submitted that each new reading of the article on the
newspaper’s website, which was open to the general public, amounted to a
new publication of that article. Traditional principles governing the
archiving of various printed materials and documents in traditional archives
were not the same as those applicable to the operation of a website,
regardless of whether a part of it had been labelled as an “archive” or not.
The term “archive” was to be understood as a set of documents which had
lost their currency. The Internet was not an instrument for archiving
materials, but had to be regarded as a means of communication of
information on current topics. The mere fact that a part of a website was
called an “archive” did not affect this in any way.
15. In so far as the first-instance court had been of the view that the
publication of a printed apology would have been, in the circumstances of
the present case, devoid of any practical purpose, the applicants argued that
under Article 24 of the Civil Code it had been open to that court to order
other measures to remedy the breach of their rights. Article 24 provided that
in order to remedy an infringement of personal rights “necessary steps”
could be taken, but did not specify the concrete nature of such measures.
The court had unequivocally acknowledged that the impugned article had
violated their rights. It had, however, limited itself to dismissing the claim.
It had failed to consider, contrary to its duty, other remedial measures,
including those it had expressly referred to in its judgment.
16. On 20 July 2006 the Warsaw Court of Appeal dismissed the appeal.
It was of the view that it was of cardinal importance for the assessment of
the case that the article had been published on the newspaper’s website in
December 2000. The court noted that the applicants had submitted that they
had only learned of its online publication a year after the judgment given in
April 2003 had become final. However, the fact that in the first set of
proceedings they had failed to make a specific request for remedial
measures in respect of the online publication made it impossible for the
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