A new Supreme Court judgement raises questions about freedom of expression on the Internet
It is well known that, under the guise of apparent anonymity, the Internet has become a place where users allow themselves to cross boundaries that, face to face, they would never dare to do. They feed themselves with posts, reels or other forms of communication and allow themselves to make increasingly disrespectful comments.
Anonymity, easy accessibility and the lack of any consequences have over the years fostered an escalation of aggressive statements and offensive comments, which in turn have made the Internet a space with such negative phenomena prevailing as hate speech.
In recent years, there have not been many online defamation cases in case law.
Among the few judgements that have been made, it is worth mentioning:
- Judgment of the District Court in Kalisz (Case No. II K 994/19). The accused who had called the wronged party a swindler and a scammer in the Google search engine and on Facebook was acquitted by the court of defamation and insult. The court emphasised that the accused intended to warn others against the fraudulent actions of the wronged party
- Ruling of the Regional Court in Poznań (Case No. IV Ka 504/18), which upheld the conviction for defamation, indicating that “the statements contained in comments on internet portals by the accused far exceeded the right to criticism”
- Judgment of the District Court for Poznań-Nowe Miasto and Wilda (Case No. VI K 457/16), imposing a fine for the comment “I also have bad memories of working at O., it doesn’t matter if you do your best and try to put yourself forward, if you’re not a suck-up or a snitch, you’ll lose! Nepotism and bullying. The emotionally unstable head of the emergency room has a problem keeping management staff. Every now and then she throws someone out because they dare to take a duvet day. Not to mention the HR lady with no training or knowledge. She has the director under her thumb! You have to stress yourself out on a minimum wage and beg for what you are legally entitled to! It’s humiliating”. The court pointed out that defamation is primarily oral, but can also take the form of handwriting, print, images, or caricatures – i.e. using various means of communication.
The courts have therefore begun to recognise the need for special treatment of these type of cases.
The Internet, despite its openness and apparent anonymity, is not a place where anyone can violate the rights of others and stay unpunished.
New case law against online hate speech
In Poland, criminal law, as well as the provisions of civil law, are also applied to online activities.
The resolution of defamation cases on the Internet is not fundamentally different from those in the traditional sphere. An important issue addressed by the courts is whether the statements found online were defamatory or offensive, and how their content affected the good reputation of the wronged party.
This phenomenon proved to be so problematic that it even found its way to the Supreme Court, leading to the disputed ruling of 15 February 2023 (Case No. III KK 331/22), concerning, among other things, the defendant’s use of words in public that the Supreme Court found humiliating.
In his post on an online portal, the accused called one of the wronged parties “the company’s owners obese kiddo”, which was considered insulting, given that obesity is often viewed negatively today and associated with a lack of self-discipline.
Such issues are not yet well-established and therefore, at different stages of these proceedings, the courts’ positions and arguments have differed.
The court of first instance held that even if the accused had not used vulgar words, the choice of words such as “obese kiddo” in the context of discussing the wronged parties’ business, was sufficient to be considered insulting. Although, the court pointed out that the accused had the right to criticize the wronged parties’ business, the manner in which he did so contained elements of humiliation that had nothing to do with a substantive assessment of the business, but only with ridiculing the personal qualities of the wronged parties.
The court of appeal, on the other hand, took the opposite view, pointing out that “obesity itself is a medical category meaning the presence of body fat of more than 25 per cent of body weight”.
According to the court of second instance, it is therefore impossible to consider it as an insulting expression, as it does not function in such a connotation in the public mind. In addition, it pointed out that the expression used by the accused is not insulting itself, as it does not express contempt towards another person.
The Supreme Court set aside the appealed judgment of acquittal of the offence under Article 212 § 2 of the Criminal Code and remanded the case.
First of all, the Supreme Court pointed out that “whether a statement is unlawful should not be determined solely by the nature of the words used, but also by the context in which they were used”.
In the opinion of the Supreme Court, the court of appeal should consider why the accused, in a post concerning the business run by the wronged parties, found it necessary to mention, inter alia, the obesity of the kiddo of the business owners, “taking into account that in today’s society this is not a preferred feature and is often interpreted negatively – as a person being languid, neglected, prone to uncontrollable overeating.” Additionally, it is irrelevant that the accused could have used a more blunt or even vulgar expression, as the use of even a seemingly neutral expression can be perceived as contemptuous behaviour in a given situation, which in turn falls under the category of an insult.
The Supreme Court also stressed that the Internet is not a space where one can publish accusations, insults or defamatory comments and stay unpunished. In its view, even if the person who publishes such content does so on the Internet, this does not mean that he or she is free from legal responsibility for their words. And defamation or insult on the Internet can lead to the same legal consequences as for similar actions in a traditional public domain.
The judgment of the Supreme Court also emphasises that the Internet space, despite its specificity, does not exempt individuals from liability for their words. Furthermore, it points to the necessity to precisely assess the context of statements and their impact on the dignity and reputation of the persons concerned. This means that the publication of untrue information or insults on the Internet may form the grounds for punishing the perpetrator, even if their action was anonymous.
The boundary between “blunt criticism” and “hate speech”
Thus, as can be seen, the topic of defamation, particularly in the online space, provides an area for discussion even for the courts.
The Supreme Court’s ruling certainly draws important lines of liability for statements in the digital space. However, in the context of freedom of expression, that judgment may be quite controversial. On the one hand, the Internet is a space where false information, defamatory statements and hate speech easily occur. On the other hand, the view expressed by the Supreme Court may be a step towards interfering too much with freedom of expression.
This restriction, while it may be necessary in justified cases, carries a huge risk of stifling open discussion, and public criticism, and engenders the fear of censorship.
Indeed, the introduction of strict regulations or the targeting of case-law may lead Internet users to avoid expressing their own views, fearing that their words will be considered defamatory, even if they are of a subjective opinion. This would undermine their fundamental right, which is freedom of expression.
While the fight against hate speech and misinformation on the Internet is an important goal, it is important to remember that there is an extremely fine line between freedom of speech and hate speech.
Freedom of expression is a cornerstone of democratic societies, a pillar of citizens’ fundamental rights, and its excessive restriction can be devastating.
We cannot allow a situation in which Internet users are too afraid to express their opinion, and the space for discussion becomes narrow and controlled. Excessive protection of a reputation at the expense of protecting freedom of expression may simply foster the suppression of criticism, and this cannot be allowed in “a democratic state ruled by law and implementing the principles of social justice”, which, according to Article 2 of the Polish Constitution, is the Republic of Poland.
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