Defamation - when can we prosecute the offender?


Defamation is a crime and the victim may be held liable in criminal proceedings. Importantly, in the event of defamation, protection covers not only natural persons, but also groups of persons, institutions, legal persons or organizational units without legal personality. The consequences of defamation often affect entrepreneurs who may fall victim to dissatisfied customers, contractors or employees. What are the grounds for qualifying an act as defamation? Does the communication channel through which the defamation has been committed matter? What if the defamatory content is real? Read the article and find out more about the crime defined in art. 212 of the Criminal Code.

Defamation definition

As defined in Art. 212 § 1 of the Penal Code, defamation is committed by those "who slander another person, group of persons, institution, legal person or organizational unit without legal personality for such conduct or properties that may humiliate it in public opinion or expose it to the loss of trust needed for a given position, profession or type of activity ”.

Grounds for Defamation

It is important that for a crime of defamation to occur, it is enough to be exposed to humiliation in the public opinion or to risk the loss of trust needed for a given position, profession or type of activity. Therefore, the defamed person does not have to show that the threat has materialized - there has been humiliation, loss of trust. It is enough that objectively the actions of the perpetrator could have caused such an effect.

In assessing whether the defamation has occurred, the will of the perpetrator will also be relevant. In this case, it is necessary to show that he acted with a direct or possible intention - the perpetrator's goal was to cause an effect in the form of humiliation or loss of trust, or the perpetrator anticipated and agreed to such an effect. In its jurisprudence, the Supreme Court has specified situations that do not constitute defamation - these are critical assessments expressed in official opinions, complaints, pleadings, scientific or artistic criticism (see the judgment of the Supreme Court of 23 May 2002, ref. V KKN 435 / 00, the judgment of the Supreme Court of 18 December 2000, file no. IV KKN 331/00).

In order to determine whether we are dealing with defamation, it is also important that its effect (even if possible) applies to "public opinion". It is not enough, then, that the feelings of a given person are offended or humiliated. The underlying behavior must be visible to others. In a situation where the only recipient of harmful opinions and behavior is the aggrieved party, defamation will not take place. There is no wider group of people against whom the aggrieved party would be defamed. It is possible, however, that the offense of insult may then take place.

Example 1.

Entrepreneurs Jan S. and Mikołaj K. were litigating in court in connection with incorrect performance of the construction works contract by Mikołaj K.. During the trial, Jan S. filed a pleading in which, among other things, he called Mikołaj K. a bungler and a loser. Mikołaj K. felt humiliated and considered that such accusations exposed him to the risk of losing the public trust needed to carry out his activities. Mikołaj K. brought a private indictment, accusing Jan S. of committing the offense of defamation under Art. 212 § 1 of the Criminal Code. The case was examined by the court and Jan S. acquitted of the charges against him. In the opinion of the court, there was no offense of defamation due to the failure to fulfill its prerequisites:

  • the action of Jan S. was not deliberate;

  • there was no larger group of people who believed Mikołaj K. could be humiliated and lose his trust.

In ruling on the lack of intent on the part of Jan S., the court referred to the decision of the Supreme Court, which indicated that the allegation raised in the course of the trial is not a defamation, provided that the perpetrator's actions are aimed at defending his own interest in the case and the allegation is presented in the proper case. form and not only to demean the person to whom it was placed. (Supreme Court judgment 4 of September 15, 1970, VKRN 31/70). The charges brought by Jan S. were intended to justify his negative attitude to Mikołaj K.'s competences, and not to humiliate him. The condition of humiliation in the public opinion was also not met. The pleading was not addressed to a wide, undefined circle of people, it was non-public.

Defamation and the mass media

Defamation is punishable by a fine or restriction of liberty, but if it happened by means of mass communication (e.g. television, radio, Internet), then the catalog of penalties is extended to include imprisonment for up to one year. The legislator has treated defamation that occurs through the mass media in a special way. The jurisprudence prevails in favor of a qualified type of defamation, also when the entry was posted on a private account on a social networking site, watched by a closed circle of recipients. The number of account followers does not matter, because the very essence of social media accounts - accessibility for an unlimited number of users of a given portal - is the medium of mass communication.

A defamatory entry posted on a private account on a social network will be a qualified type of defamation, which means that the perpetrator is also punishable by imprisonment.

Example 2.

Magda M. was disciplinary dismissed from work. The woman did not agree with the decision of her boss, Janina R., who, in her opinion, decided to dismiss her for personal reasons. Magda M. posted three entries on her account on a well-known social networking site devoted to Janina R., in which, using words commonly considered offensive, she questioned her competences and accused her of unfair behavior towards contractors. The entries, although marked as private, reached Janina R., who decided to pursue her rights in court. Due to the fact that Magda M. fulfilled all the statutory conditions, the court found her guilty of the offense of defamation. In the opinion of the court, the crime was committed by means of mass communication.

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Defamation Unlawfulness Exclusion

For the legal assessment of a defamatory act, it will be important whether the defamatory content is true and the status of the person affected. If the allegation is true and was not made public, its unlawfulness is excluded. Such an exclusion will also take place in relation to a real allegation made in public to a person who performs a public function or when the allegation serves to defend a socially justified interest. Citing the circumstance of acting in a socially justified interest requires proving that it was the sole purpose of the perpetrator, moreover, the belief in defending the socially justified interest must be objectively established and not only remain so in the subjective opinion of the perpetrator.

Defamation made with the awareness of false information and assessments about the conduct and properties of another person never serves to defend a socially justified interest (decision of the Supreme Court of June 22, 2004, V KK 70/04, OSNKW 2004, No. 9, item 86).

The existence of premises excluding the unlawfulness of defamation does not mean the complete exclusion of the perpetrator's liability, as the perpetrator may be held responsible for the insult due to the form of raising or broadcasting the allegation.

Defense of rights in a criminal trial - what are the advantages?

A great advantage of defending the rights of the aggrieved party in criminal proceedings is the possibility of receiving help from state authorities. In many cases of defamation, the aggrieved party does not know who the perpetrator is. An example would be anonymous posts made on internet forums. The criminal procedure makes it possible to obtain the help of the police in identifying their author.

Defamation trial - what can the injured party claim?

Defamation may result in a loss of trust and damage to the entrepreneur's reputation. As part of remedial action, the victim may file a motion for the conviction to be made public. Upon receipt of the application, the court must take such action. It is also at the discretion of the court to adjudicate in favor of the aggrieved party, the Polish Red Cross or any other social goal indicated by the aggrieved party.

A defamed person may also assert his rights through civil proceedings.