Freedom of the press (or more broadly, of the media) is one of the fundamental rights and values important for the existence and good functioning of civil society. This freedom means a right to inform and to be informed of all issues of public importance. On the other hand this right is not an absolute one. Very often it confronts other rights and values having also significance for democratic society and deserving accordingly legal protection. For example, to mention only a few, conflicts may occur - and usually do occur - between freedom of the press and privacy, freedom of the press and the interest of the justice system, freedom of the press and the right to good name and respect of human dignity.
Tensions between different values are one of the most difficult legal issues that cannot be reconciled by a simple (and simplistic) legal provision. A good solution has always to refer to legal regulations but - what is even more important - is built upon balancing practice of legal institutions which in the process of law application try to work out a satisfactory test that would enable to resolve the conflicts of values involved. In such situations law and society meet each other and the solution to be arrived at depends upon activities of different social, professional and civil rights groups.
In countries with a long democratic tradition tests that reconcile conflicting rights and values have been worked out and checked against new circumstances. The situation is different in new democracies of Central and Eastern Europe where - first - old and only amended regulations are still in force, and - second - usually no domestic legal precedent can be evoked to help resolve emerging "hard cases". In Polish context very striking examples of this failure are offered by two important cases pending now before the court. The first one is President Kwas niewski v. Daily "Z ycie" in which the plaintiff (acting as private person) demands an enormously huge amount of damages for an alleged infringement of his personal goods (as they are called in Polish legal language). If granted, the damages would economically ruin the defendant which is one of the leading quality dailies in Poland. The second case - the Amway case - concerns the interim injunction issued against the director of an awarded documentary film showing controversial business practices in the way which the claimants consider to be harmful to their good names. Given the delays in deciding civil cases in Polish courts, the result of application of the interim measure is that the film will not be presented even for years.
The main objective of the proposed project will be to collect data on how similar cases are approached and decided in established democracies and to research the applicability of the relevant measures in the countries of the region. Some measures and remedies have been worked out within domestic legal systems, other in consequence of complaints brought to the European Court of Human Rights in Strasbourg. Especially the latter solutions are very important because they represent some European standards applicable to those Central and Eastern European countries which signed the European Convention for Protection of Human Rights and Fundamental Freedoms. It is also worth mentioning that the Strasbourg Court has in many cases worked out its decisions on the basis of principles (e.g. proportionality, efficacy) instead of an analysis or an interpretation of mere legal provisions. In many countries of our region an application of the modes of argumentation used by the Strasbourg Court would mean a change in traditional patterns of legal justification which is still rather rule than principle oriented.
The second objective would be to research how particular countries of the region deal with the value-laden cases related to freedom of the press. A comparative analysis should enable to prepare a kind of expertise to be used during works on new press and media regulations in the future. In the Polish Parliament these works are scheduled for the near future. The collected materials might also serve for preparing a course on media law for students at the universities of Cracow and Warsaw.
More particular topics proposed for research during the term of the fellowship are especially as follows: