The 28-year-old author of the post, Marta S., who worked for an advertising agency, was charged with defaming one of the people shown in the photograph by attributing conduct capable of humiliating him in the eyes of public opinion. With regard to the offence of so-called illegal dissemination of the photograph, the proceedings were discontinued because, under the provisions of the Copyright and Related Rights Act, the photograph taken by Krzysztof Raczkowiak was not subject to criminal-law protection. The author may pursue his rights in this respect through civil proceedings.
Dissemination of the photograph and notification of an offence
The photograph taken by Krzysztof Raczkowiak in Lubin on 31 August 1982 was disseminated on 18 August 2015 as an advertisement for an alcohol brand via a telecommunications network, using the “Żytnia Extra” profile on the Facebook website. A notification of an offence consisting of insulting the memory of the victims of the Lubin events was submitted in this case by the photographer Krzysztof Raczkowiak, the Regional Board of the Copper Basin Region of NSZZ Solidarność, and Sejm member Elżbieta Witek.
The story behind the photograph
On 31 August 1982, Krzysztof Raczkowiak took part in the Lubin events, which ended with the intervention of the Citizens’ Militia and ZOMO. During the events, several demonstrators died as a result of the use of firearms, while many others sustained bodily injuries. During the demonstration, Krzysztof Raczkowiak took a series of photographs documenting the course of events, including one showing a group of men carrying Michał Adamowicz, a participant in the unrest who had been fatally shot.
Immediately after these events, the photographic film was hidden. Some of it, including the film containing the photograph of the fatally shot Michał Adamowicz, was taken abroad. The photographs were published in the Western press. Because of the martial-law period and fear of repression, the author himself did not disclose his identity. His authorship and the photographs themselves became widely known later. Photographs documenting the course of the Lubin events began to be used in various publications and exhibitions.
Because of its tragic significance, the photograph used in the advertisement became an iconic image, associated not only with the Lubin incidents but with the entire period of martial law in Poland. Krzysztof Raczkowiak later posted this and other photographs concerning the Lubin events on his website. In the website footer, the author included the following statement: “The copyrights to the photographs posted on this website belong to Krzysztof Raczkowiak. Any use, publication or copying requires the author’s consent.” The website also contained the necessary contact details for the above-mentioned person.
Since the photograph was taken, only 3 of the 6 people visible in it have been identified: the then-28-year-old electrician Michał Adamowicz, who was fatally shot, and two other men, one of whom has since died. The identities of the remaining three men visible in the photograph could not be established, either now or during the earlier investigation into the Lubin events.
Circumstances of publication
On 18 August 2015, this symbolic photograph was used on the online profile of a vodka brand operated by a Toruń advertising agency. The photograph was accompanied by text placed directly on the image and an additional comment suggesting that the men shown had attended a bachelor party at which they had heavily abused alcohol, as a result of which one of them had to be carried.
These alterations completely changed the content and meaning of the photograph, particularly by portraying the people shown in a negative light and attributing characteristics to them that they did not actually possess. The strong reaction of internet users to the post led to its removal in less than an hour, an apology being posted by the administrators of the “Żytnia Extra” profile, and subsequently apologies being published by the advertising agency’s president and the vodka-manufacturing company.
Findings of the proceedings
It was established that the posts on the vodka profile had been published by the then-suspect, 28-year-old Marta S. She had been employed by the Toruń agency under a contract for a specific task. She made the post using her laptop from Warsaw. Since the vodka profile’s strategy referred to the past, including the period of the Polish People’s Republic, she searched the internet for photographs from that era. She found the photograph in question using Google. She downloaded it to her computer’s hard drive, then edited it by adding a strip with text and accompanying it with a comment intended, in her view, to promote the alcohol brand.
She had no knowledge whatsoever of the event documented in the photograph. She stated that she had found the photograph intriguing solely because of the unusual way in which the man was being carried. Pointing to her young age, the woman said that she had no detailed knowledge of the events of martial law, and particularly of the tragic Lubin incidents. She also admitted that, when using the photograph, she had not checked or clarified before publication whether any copyright existed in the photograph.
With the benefit of hindsight, she considered her conduct in choosing the photograph, adding the text and publishing the comment with its specific content to have been erroneous and unprofessional. The proceedings confirmed that the photograph had been downloaded directly from an internet search engine to the computer’s hard drive. It was not necessary to visit a specific website to do so.
It was established that the photograph actually came from the website of the Institute of National Remembrance. The photograph posted there did not identify the author and contained no copyright notice whatsoever. It was also established that downloading the photograph from the online resources posed no technical difficulty. The photographs were not protected against being saved for further use.
No criminal-law protection for the press photograph and discontinuation of the proceedings in this respect
The photograph of the Lubin events was taken while the Act of 10 July 1952 on Copyright was in force. Those provisions remained in force until 24 May 1994, when the currently applicable Act of 4 February 1994 on Copyright and Related Rights entered into force. That Act distinguished the concept of a press photograph. In view of the shortcomings of the statute, the Supreme Court defined it as follows: “A press photograph is a photograph depicting an actual event, taken at the time when it occurred. Its essential characteristic is recording an event in photographic form at the moment when it was happening (‘in the heat of the moment’), regardless of what the event was” (Supreme Court judgment of 25 November 2009 in case II CSK 271/09). Under this interpretation, there can be no doubt that the photograph used in the advertisement was precisely such a photograph. An analysis of the 1952 Act indicates that press photographs were not subject to copyright. The exclusion of press photographs from legal protection was categorical, definitive and final. Consequently, photographs taken by press photographers depicting, among other things, the most important events of the Polish People’s Republic period, such as October 1956, March 1968, December 1970 and August 1980, were not protected by copyright under either the 1952 Copyright Act or the new Act currently in force. From the perspective of copyright law, disregarding the regulation contained in Article 23 of the Civil Code, a press photograph created before 24 May 1994 could and can be exploited in any manner and for any purpose that does not conflict with applicable law.
Even if it were hypothetically assumed that the photograph by Krzysztof Raczkowiak was not a press photograph, it should be stressed that under the 1952 Act, photographs were protected only and exclusively when an explicit copyright reservation was shown on the photograph itself, not beside it. The regulation therefore required the work to be marked in a manner leaving no doubt that the creator wished to place it under legal protection. The absence of such markings, as in the case under consideration, resulted in a lack of legal protection, regardless of the reasons, including the prevailing political realities. There were no markings on Krzysztof Raczkowiak’s photograph. Although the reason for their absence in 1982–1990 seems obvious, the information was not added later either, after 1990 and before the Copyright Act of 1994 entered into force on 24 May 1994.
Therefore, the notice beneath Krzysztof Raczkowiak’s photographs on his website produces none of the legal effects referred to in the 1994 Copyright and Related Rights Act. These findings lead to the conclusion that there were no grounds for holding the author of the post criminally liable for fulfilling the elements of offences listed in the Copyright and Related Rights Act. For these reasons, the proceedings in this respect were discontinued.
Criminal liability for defamation
The legal assessment presented above does not, however, affect the issue of criminal liability for the privately prosecuted offence of defaming the people shown in the photograph. The prosecutor also found that there was an important public interest in having the act prosecuted ex officio. Contrary to the literal meaning of the word, defamation may be committed not only orally but also in writing, including through print, photography, graphics or drawings, for example in the form of a caricature or so-called memes.
There is also no doubt that the internet, owing to the mass dissemination of various content, is a means of mass communication and can therefore be used to defame another person or persons. The perpetrator need not personally know the person being defamed, and the absence of that person’s name is irrelevant where there is no doubt which person or persons the defamation concerns. The essence of defamation is the mere possibility of humiliation in the eyes of public opinion. It need not actually occur.
Defamation gives rise to criminal liability when it entails the possibility of moral harm to the injured person in the form of humiliation or exposure to loss of trust. Exposing the defamed person to humiliation in the eyes of public opinion means that there is a real danger of worsening the opinion formed about that person, and that other people may regard the injured party as humiliated. The publication of a post containing a photograph so distorted in relation to its original state, together with a comment of a specific nature, clearly indicates that such exposure to humiliation occurred.
Importantly, the offence of defamation referred to in Article 212 § 1 and § 2 of the Penal Code may concern only a person who was alive when the act—the publication of the post—was committed, unless the perpetrator’s statements about a deceased person were intended to infringe the dignity of a living person, which was not the case here. In relation to a deceased person, it is not their honour that is infringed but their memory. In this respect, legal protection of the memory of deceased persons against defamation is provided exclusively under civil-law provisions (Articles 23 and 24 of the Civil Code). Thus, having established that Michał Adamowicz and one of the men carrying him were deceased, there were no grounds to find that the offence of insulting them had been committed to their detriment. The same finding applies to the men whose identities could not be established. As regards the possibility of close relatives assuming the rights of injured parties, it must be stressed that under the Code of Criminal Procedure this is possible only where the injured person died after the defamation or insult was committed. This means that the deceased person would have had to be insulted or defamed during their lifetime, which did not occur in this case. In view of the above, the proceedings concerning the defamation of Michał Adamowicz and the other deceased man were properly discontinued for lack of the elements of a prohibited act, while the proceedings concerning the act to the detriment of the three unidentified men were discontinued because there was insufficient data justifying suspicion that such an act had been committed.
Charges of defaming one of the living men brought against the post’s author
In view of the above circumstances, the prosecutor, finding that the offence of defamation had been committed and that prosecuting it ex officio was fully justified, if only because of the broad negative public reaction to the use in an alcohol advertisement of a photograph depicting a victim of martial law, questioned the only known living injured party, accepted his request for prosecution and decided to charge the author of the post.
The charge was presented to Marta S. on 27 November 2015. Marta S., who comes from Olsztyn, pleaded guilty and gave extensive explanations. She stated that she was very sorry about what had happened, that one mistake on her part had caused a whole chain of events affecting not only the injured parties but also her employers and family. She deeply regretted what had happened.
For the offence of defamation, Marta S. faces a fine, restriction of liberty or imprisonment for up to one year. The proceedings in this respect are ongoing.
Liliana Łukasiewicz, press spokesperson for the Legnica District Prosecutor’s Office/ii