—J.H.H. Weiler, Co-Editor in Chief, ICON, and Wojciech Sadurski, University of Sydney
One of the more ‘elegant’ ways of restricting freedom of political speech and academic freedom is to use libel and defamation laws. It has increasingly become the weapon of choice of various political actors and regimes. Nobody would gainsay that academics may libel others and that politicians can be libelled and have the right to have their names and reputations vindicated. But, in my view, the proper forum for such is a civil court in an action between individuals. Even then, excessive legal costs and outlandish damages (the UK is notorious for such) may produce an unwarranted chilling effect.
It becomes particularly alarming and at times pernicious when a libel or defamation allegation for statements made in the arena of political contestation is transferred from a private civil action to a public criminal one. To be subject to the opprobrium resulting from a criminal conviction as well as criminal sanctions raises the stakes by several registers and the chilling effect risks becoming a freezing effect.
The fact that countries with impeccable democratic credentials like France regularly use the criminal law in this manner does not kosher this particular pig. EJIL and its Editor had to stand trial for criminal defamation defending academic freedom. It was not pleasant.
Where it is used, we expect courts to understand the huge stakes involved and whilst affording protection to reputations unjustly sullied, not allowing themselves to become complicit in undue restriction of academic freedom and freedom of expression in the political arena, the life breath of democracy.
Robust political contestation necessitates a wide latitude to ‘words which offend’. I have googled, to give by one example, the expression “bunch of criminals” – producing over one million hits. It, or similar broad brush expressions, have been used endlessly to, say, characterize the White House, the Netanyahu government, the British Labor Party and other political bodies with understandable impunity as part and parcel of the aforementioned robust political contestation.
Wojciech Sadurski, is a renowned professor of public law, well known to readers of EJIL and ICON (he is, inter alia, a Council member of ICON-S and Board Member of ICON, the sister journal of EJIL). He has been a colleague of mine in more than one institution and, full disclosure, a friend of many years despite our several intellectual and academic disagreements (Wojciech articulated some of the sharpest criticism of my book A Christian Europe, to give but one example). He is a critic of the current government of his native Poland, some would say an outspoken critic, and author of Poland’s Constitutional Breakdown published this year by OUP.
Recently he stood trial for libel in Warsaw. I thought it would be of interest to interview him for our readers.
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J.W: To begin with, Please explain at the strict technical legal level the circumstances of this trial. Of what are you accused, what is the legal matrix underlying the prosecution, is this a civil or criminal case, before which court, and what, if convicted, what are the possible penalties under the relevant law. W.S: First of all, thank you Joseph for your expressions of concern, and for this conversation. I should say straight away that, currently, I have three court cases pressed against me by governmental entities in Poland, not just one. All three are politically motivated, and all three are based on defamation charges. One is a civil defamation case, under Art. 24 of the Civil Code (alleging a breach of “moral rights”, which is equivalent in Polish legal language to ‘good name and reputation’) launched by the ruling party PiS [Law and Justice], based on a single tweet in which I had compared its modus operandi to that of a criminal organized group. The other two are pressed by the governmental TV called TVP (state owned and fully state-controlled), also on the basis of a single tweet, in which I had argued that no of the Mayor of Gdańsk, Paweł Adamowicz who was murdered by a mentally disturbed man. I had not implied that the hounding led to the murder and I had not even mentioned TVP by name but this is what TVP read into my tweet. At about the same time they launched a private criminal indictment (an exceptional device in Polish criminal procedure), on the basis of exactly the same tweet, accusing me of a crime under the infamous Art. 212 of Criminal Code – one of the few instances of criminal defamation law in a democratic state today, as far as I know. Theoretically, I can go to jail for up to 2 years if I am found guilty though the private accuser demands only a criminal monetary fine for me (but then, a judge is not bound by the specific punishment demanded by the accuser). Regarding the two civil actions, the plaintiffs’ demands include public apologies and very hefty financial compensation to the plaintiffs/accuser. The total sum of all compensations demanded is PLN 50 000 but public apologies demanded of me in print and electronic media can cost me four times this amount. And of course if I lose, I will have to pay not only my but also the winners’ legal fees and court fees – which, together, can be enormous.
The state of play as of today is: on the PiS civil case, I already had my court trial in Warsaw on 25 November 2019 and the judgment is expected on 16 December. The TVP civil case will go to trial on 28 January 2020. The TVP criminal case had already seen its first stage: a procedural one, which I won in the first instance but lost on appeal, and the case has been remanded for reconsideration by the court of first instance, which of course is bad news for me. There will be a mandatory “mediation” session later in December this year but it is unlikely to end the case because I am unwilling to apologize, and I expect the trial(s) in the first months of 2020.
J.W.: The quality of the Rule of Law is not only determined by the rules of law but by the manner they are applied by those who administer them. With this in mind, what was your impression of the trial itself?
W.S.: My impressions of the first trial were by-and-large neutral. The judge (the panel was just one judge, in an upper court, and the judge herself was recently “delegated” from a lower court for an indefinite period, which in Poland is normal these days but which gives the Minister of Justice real power over a judge) was seemingly impartial. True, she denied some of our procedural motions (for instance, disallowing two amici curiae from international NGOs on doubtful grounds) but then she also dismissed the plaintiff’s motion to refuse cross-examination of me as a party to the proceedings. We thought such a cross-examination was important for us, and the plaintiff fought it – but unsuccessfully. Cross-examination by a judge (Poland has an “inquisitorial” model of court trial which means that the judge is the true “master” of the proceedings) was fair, and I did not detect any animus against me. She allowed me to speak for quite a long time, and never interrupted me. (Neither did the attorneys for the plaintiff). Especially at the beginning of the trial the judge was visibly nervous, and clearly irritated by the number of the audience which far exceeded the number of seats; as a result, she treated the audience with some hostility but this did not translate into any hostility towards me or my attorneys, in my view. There was a bizarre moment at the very beginning where two police officers appeared in the courtroom – not clear whether the judge ordered them in (I was told that without such a call by a presiding judge police officers simply would not enter). But after a few minutes they gently asked the judge whether they could be dismissed – and they were. (It made for a good photo opportunity!).
There is a matter of some controversy (especially in the media) about whether a “delegated” judge (i.e., a judge whose temporarily higher position and remuneration than her normal career path would dictate, and whose fate is at full discretion of the Minister of Justice) should judge such a politically sensitive case. But I do not want to comment on it before the judgment is announced. I must and want to assume that she is impartial.
J.W.: Assume that someone made a statement similar to the one for which legal action has been taken against you against the previous government. Would there have been a different reaction?
I do not know of any cases of defamation suits, civil or criminal, run by the former government or coalition parties in power prior to 2015. And there were plenty of clearly defamatory statements and accusations on the part of the opposition media and politicians, including suggestions of high treason in relation to the air crash of 10 April 2010 when former President Lech Kaczyński and over 90 passengers of the presidential plane died near Smolensk.
J.W.: How typical or atypical is your case in the current circumstance in Poland? Are there other instances where libel and defamation laws have been used in this manner? Is there a pattern?
W.S.: Both typical and atypical. It is typical because both the entities which sue/indict me, have done it to a number of other persons: PiS has sued a famous journalist Wojciech Czuchnowski for using the expression “PiS mafia state”, and TVP has sued and/or indicted a number of journalists and other public figures, including famous artists and even the Ombudsman (Commissioner for Human Rights) on exactly the same basis as they sued and indicted me, i.e. for (allegedly) finding a link between the TVP coverage of Paweł Adamowicz and his tragic death. All these suits and indictments were unsuccessful so far. But my case is also atypical: I have the dubious distinction of being the only person facing three different court procedures at the same time, including two parallel procedures pressed by TVP (with regard to other public figures, TVP had selected either a civil suit or a criminal indictment). So, if judged by the sheer volume of court activities against me, I am probably considered currently the main bête noire of the government.
J.W.: What has been the reaction within Poland to your case – in the Press, in the social media, in the academic and university world?
W.S.: Reaction in Poland has been massive and almost unanimously extremely supportive. I say “almost” because most of the right-wing and pro-government media ignored my trials altogether, and on social media there were occasional – but really very few and far between – expressions of satisfaction that they “finally got me”. But other than that, I was amazed by the volume and the tone of support and interest. The main printed media and some broadcast and online media carried fair and good coverage of my trial; the main independent journalists’ association issued a statement of support and lodged an excellent amicus curiae brief; there was a huge number of people (clearly, all supportive) who wanted to observe the trial in the courtroom but only some of them found seats; I had a number of messages sent to me by people unknown to me. On social media, the reactions were, as I said, almost entirely supportive, and on Facebook, a video showing my hearing and my statement had over 109 thousand views, with the sort of comments which embarrass me by the warmth of their support. In the academic or university world – no collective statements of support, as far as I know, but some individual colleagues individually expressed their solidarity, and so did many human-rights oriented NGOs.
J.W.: Can you describe your feelings and reactions at the various stages of the process: When you were informed of the cases? During the trial? Since?
W.S.: These questions are not an easy for me to answer because I am not good at introspection, and at self-analysis. I can say that I think that I have been rational about the whole affair throughout, and I have never had any major regrets, self-doubts, anger or sense of despair, much less, misery. Once I had conceptualized the whole situation in which I found myself through my own, conscious and deliberate actions, as that of being a target of a vindictive, ruthless and authoritarian government that wants to silence me but more importantly, to create a chilling effect that would discourage other government critics from speaking up openly against it – I knew exactly what to do and how to feel about it. I have known that there are two extreme, diametrically opposed temptations to resist. One is to adopt the attitude of a martyr: I am not one. There have been others before me, and are still now, who risk much more and thus show much more courage (such as judges or prosecutors in the early or mid-stage of their career who risk losing their work and livelihood). The second, opposite temptation which should be resisted is to trivialize or banalize the situation. The fact that a governing party and a state-run broadcaster in the heart of Europe 2019 are pursuing their critics by legal means is an extremely serious matter, and it is not about me, Wojciech Sadurski, because I will cope, but about the whole system of “discriminatory legalism”, as some scholars describe it. It is a case of “For my friends, everything, for my enemies, the law”. So I have conceptualized the situation for myself as being a drastic case of authoritarianism in action, and that I should do my best to make it clear to whoever is interested. Hence my deliberate steps to publicize the matter as widely as possible. Hence my “day in court”: I used the civil-procedural opportunity of “a hearing of a party as witness” to engage in my little “J’accuse” (toutes proportions gardées, of course, considering the historical pedigree of the words), and I think I used it effectively. Over a hundred thousand views on Facebook testify to this. Perhaps the main source of my psychological tranquility during all this (and during the weeks and months to come) is a deep sense that what I did was right. I may of course be wrong about my specific assessments and opinions, but I was right to voice my deep concerns about developments in Poland, and do it in very strong words. So I have no regrets. I have not been doing it for self-serving motives: for self-aggrandizement or fame, but for par excellence patriotic reasons. Poland is the country I love – the only country in the world I truly love – and I am not going to allow any political party in power or any government propagandists to define for me the boundaries of my freedom of expression when scrutinizing their actions.
J.W: Thank You
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The decision in the first case is expected on December 16th. Professor Sadurski has very graciously accepted to continue the interview at that point.
Suggested citation: J.H.H. Weiler and Wojciech Sadurski, JHH Weiler, Co-Editor in Chief, in Conversation with Professor Wojciech Sadurski, Int’l J. Const. L. Blog, Dec. 13, 2019, at: http://www.iconnectblog.com/2019/12/JHH-Weiler-co-editor-in-chief-in-conversation-with-professor-wojciech-sadurski/
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