WĘGRZYNOWSKI AND SMOLCZEWSKI v. POLAND JUDGMENT
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65. The Court further notes the finding made by the Warsaw Regional
Court that the article in question had been published in the print edition of
the newspaper. That court expressed the view that it was not for the courts
to order that the article be expunged as if it had never existed (see paragraph
12 above). The Court accepts that it is 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 have in the past been found, by final
judicial decisions, to amount to unjustified attacks on individual reputations.
Furthermore, it is relevant for the assessment of the case that the legitimate
interest of the public in access to the public Internet archives of the press is
protected under Article 10 of the Convention.
66. The Court is of the view the alleged violations of rights protected
under Article 8 of the Convention should be redressed by adequate remedies
available under domestic law. In this respect, it is noteworthy that in the
present case the Warsaw Court of Appeal observed that it would be
desirable to add a comment to the article on the website informing the
public of the outcome of the civil proceedings in which the courts had
allowed the applicants’ claim for the protection of their personal rights
claim (see paragraph 12 above). The Court is therefore satisfied that the
domestic courts were aware of the significance which publications available
to the general public on the Internet could have for the effective protection
of individual rights. In addition, the courts showed that they appreciated the
value of the availability on the newspaper’s website of full information
about the judicial decisions concerning the article for the effective
protection of the applicant’s rights and reputation.
67. However, the Court emphasises that in the proceedings in the present
case the applicant did not submit a specific request for the information to be
rectified by means of the addition of a reference to the earlier judgments in
his favour. It was neither shown nor even argued before the Court that under
the applicable legal framework they could not request the court to specify
the steps that they wished to be taken in respect of the internet publication
with a view to securing the effective protection of their reputation (compare
and contrast with K.U. v. Finland, referred to above, where no such
possibility was available to the applicant).
68. Taking into account all the circumstances of the present case, the
Court accepts that the State complied with its obligation to strike a balance
between the rights guaranteed by Article 10 and, on the other hand,
Article 8 of the Convention. A limitation on freedom of expression for the
sake of the applicant’s reputation in the circumstances of the present case
would have been disproportionate under Article 10 of the Convention (see
Karakó v. Hungary, no. 39311/05, § 28, 28 April 2009).
69. The Court therefore upholds the Government’s preliminary
objection.
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