S. captioned the photograph with a suggestion that the five men visible in it, carrying their colleague, had suffered the unpleasant consequences of alcohol abuse. In reality, the photograph captured the moment when they were carrying Michał Adamowicz, who had been killed by ZOMO.
At the prosecutor’s request, the court—finding Marta S. guilty of insulting the only man in the photograph who has so far been identified and is still alive—conditionally discontinued the proceedings against the defendant for a one-year probation period and ordered her to pay PLN 15,000 in compensation to the injured party.
The photograph’s creation
On August 31, 1982, during martial law, workers’ protests took place in Lubin and ended with the use of firearms by the MO and ZOMO forces intervening at the time. This resulted in the deaths of several demonstrators and injuries to many others. The events were photographed by Krzysztof Raczkowiak. It was then that he took the photograph showing a group of men carrying the mortally wounded 28-year-old electrician Michał Adamowicz.
Because of its tragic significance, the photograph became an iconic image associated not only with the Lubin events, but with the entire period of martial law in Poland.
Publication of the photograph with an offensive caption
On August 18, 2015, this symbolic photograph was used by a Toruń advertising agency on the Facebook profile it operated for Żytnia Extra vodka. By placing text on the image and adding a comment, the agency completely changed the photograph’s content and meaning, in particular portraying the people visible in it negatively by attributing characteristics to them that they did not actually possess.
The decisive reaction of internet users to the post led to its removal within less than an hour, as well as an apology posted by the administrators of the Żytnia Extra profile, followed by apologies from the president of the advertising agency and the company producing the vodka.
Who published the photograph
It was established that the posts on the vodka’s profile had been published by Marta S., who was employed by the Toruń agency, came from Olsztyn, and had a university degree in history. She stated that the online profile advertising the vodka referred in its strategy to the times of the Polish People’s Republic. She searched the internet for photographs from that era. She did not know what event the photograph documented. She considered the photograph intriguing because of the unusual way the man was being carried. Citing her young age, she said that she knew little about the events of martial law, including the tragic Lubin events. She admitted that before publication she had not checked whether copyright to the photograph existed. In retrospect, she considered her conduct mistaken and unprofessional.
After a detailed legal analysis, the prosecutor concluded that there were no grounds for holding the post’s author criminally liable for infringing photographer Krzysztof Raczkowiak’s copyright. For these reasons, the proceedings in this respect were discontinued. The decision is final.
Defamation possible only to the detriment of a living person
It was nevertheless established that publishing the post fulfilled the elements of the privately prosecuted offense under Article 212 § 1 of the Criminal Code: defaming the people shown in the photograph (lowering them in the public’s opinion). This offense may concern only a person who was alive when the offense was committed.
Since, apart from Michał Adamowicz, who was shot dead, only two of the six men visible in the photograph had so far been identified, and only one of those two was alive, only he could be recognized as the injured party.
In criminal proceedings, the deceased’s next of kin may assume the rights of injured parties only when the insult occurred while the insulted person was still alive, which did not happen in this case. Therefore, the prosecutor discontinued the proceedings concerning the defamation of Michał Adamowicz and the other deceased man due to the absence of the elements of an offense. In the case of defamation to the detriment of the three unidentified men, the proceedings were discontinued due to insufficient data substantiating suspicion that the offense had been committed.
Charges brought against the post’s author
The prosecutor, having determined that the offense of defamation had been committed, concluded that—at least because of the broad negative social response to the way the photograph had been used—there was a need for it to be prosecuted ex officio, and did so. After questioning the only known injured party who was still alive, the prosecutor accepted his request for prosecution.
On November 27, 2015, Marta S. was charged with defaming the injured party on August 18, 2015, in Warsaw, Lubin and other locations, through a mass communication medium, using the Żytnia Extra profile on Facebook, by publishing a photograph showing his likeness, taken on August 31, 1982, during the Lubin events, bearing the vodka’s logo and a comment suggesting negative characteristics, which could have lowered him in the public’s opinion; that is, with an act under Article 212 § 2 in conjunction with Article 212 § 1 of the Criminal Code. Defamation is punishable by a fine, restriction of liberty or imprisonment for up to one year.
Marta S. admitted committing the offense and gave extensive explanations. She stated that she was very sorry about what had happened. She apologized to the injured party by letter and in person during mediation proceedings. In addition, as requested by the injured party, she declared that she would pay financial compensation for the harm suffered in the amount he had proposed.
During mediation, the parties reached a settlement.
Application to the court for conditional discontinuation of the proceedings for a one-year probation period
After analyzing all the circumstances, the potential penalty and the defendant’s conduct—she had undertaken during mediation to pay the injured party PLN 15,000 in compensation—the prosecutor concluded that there were grounds to apply to the court for conditional discontinuation of the proceedings for a one-year probation period.
As a rule, criminal proceedings may be conditionally discontinued if the act is punishable by no more than three years’ imprisonment (in this case, up to one year), and if the guilt and social harmfulness of the act are not substantial, the circumstances of the offense are not in doubt, and the offender’s conduct, who has not previously been convicted of an intentional offense, as well as their characteristics, personal circumstances and previous way of life, justify the assumption that despite the discontinuation of the proceedings they will comply with the legal order and, in particular, will not commit another offense.
In the prosecutor’s view, this measure could be applied to the defendant. Conditional discontinuation, which in essence acknowledges the offender’s guilt, would in this case, on the one hand, establish the unlawfulness of the conduct and, on the other, constitute an appropriate response by the justice system to the criminal behavior, taking into account the position of the injured party, who was not interested in excessive severity toward the defendant.
The prosecutor emphasized that Marta S. had not previously been convicted, and that her conduct, circumstances and personal characteristics indicated that she was not demoralized or contemptuous of the legal order. She was young and led a stable life. It could therefore reasonably be concluded that her conduct was an isolated incident.
In its judgment, the court shared the prosecutor’s position. The application for conditional discontinuation of the proceedings reached the Lubin court on February 29, 2016. On April 18, 2016, the judgment in the case was delivered. The court agreed with the prosecutor that the defendant should be given a chance and that the proceedings should be conditionally discontinued for a one-year probation period, while requiring her to pay the injured party the agreed compensation for the moral harm suffered, in the amount of PLN 15,000.
Liliana Łukasiewicz, press spokesperson for the District Prosecutor’s Office in Legnica/ii