Law and the media in Poland
Penal Code.
Although Poland has a new penal code which came into force September
1, 1998 and had been prepared with the aim to adjust criminal provisions
to the requirements of the European Convention, several rules seem to suggest
that this aim has not been achieved successfully.
Art. 135 § reads that "anyone
who in public insults President of the Republic is liable to up to three
years’ imprisonment". This provision is a remnant of the corresponding
rules of the old penal code which penalized insults directed against Polish
nation, socio-political system, "leading" state organs with the draconian
sanctions of up to 8 years’ imprisonment (when an act was committed by
means of mass communication the sanction was up to 10 years’ imprisonment).
Under the present law, it suffices that insulting words have been spoken
or otherwise communicated to others to commit an act of insult against
President. This crime is a crime of action not a crime of result. The provision
seems to contradict those Strasbourg principles which specify that the
level of protection of public figures (even the highest ones) should be
lower than in case of non-public persons.
Art. 226 § 1 provides that
"anyone who insults a civil servant or a person officially assisting him
during or in connection with carrying out of his official duties is liable
to a fine, to restriction of personal liberty or up two years’ imprisonment".
When compared with the previous penal code, this provision seems even to
broaden the scope of intervention because it has replaced the old phrase
"during and in connection" with the new one of "during or
in connection".
Art 226 § 3 reads that "anyone
who insults or abases a constitutional organ of the Republic is liable
to a fine, restriction of personal liberty or up to two years’ imprisonment".
This provision is a remnant of the archaic construction of crimen laese
maiestatis which afforded a special protection to public persons or
institutions. Apart from that, the provision does not precise which constitutional
organs are protected by the law. A far-reaching interpretation of this
rule may encompass all state organs and institutions mentioned in the Constitution.
Art. 212 § 1 states that "anyone
who defames another person, a group of people, an institution, a legal
entity or organizational unit without legal personality by attributing
them an act or a characteristic which may abase them in the eyes of public
opinion or jeopardize the loss of confidence necessary to carry out a certain
post, profession or kind of activity is liable to a fine, restriction of
personal liberty or up to one year’s imprisonment". §
2 continues that "if a perpetrator commits an act prescribed in §
1 by means of mass communication he is liable to a fine, restriction of
personal liberty or up to two years’ imprisonment". According to the materials
from the legislative procedure (travaux pré
paratoires), these provisions have been enacted to increase the protection
of good name by setting out limits on the right to criticism, especially
when this criticism is expressed publicly and concerns private and family
matters.
The truth of statements is an excuse upon the condition that the statements
are communicated to safeguard "a socially protected interest". If, however,
a statement concerns a private or family matter the proof of truth is admissible
only when the statement aims to prevent a danger to human life or health,
or demoralization of minor (art. 213 §
2). The requirement of the proof of truth is applicable both to facts and
opinions. As such it is very restrictive. The Strasbourg Court has in its
case law stressed that when value judgments are concerned this requirement
is impossible of fulfilment and accordingly infringes freedom of opinion.
Even in case of facts many modern Western laws provide for good faith and
public interest defences. In Poland, the defence of "socially protected
interest" is applicable only when true statements are involved. It is not
certain whether courts will interpret the latter element in subjective
terms (journalist thought that statements were truthful and was justified
in his opinion) or objectively (statements are true as such). In the first
situation Polish practice would be consistent with European standards.
In the latter case, however, penal law would punish not only the dissemination
of information known to be false, but also statements made in good faith
if the perpetrator cannot prove their truthfulness or could not - according
to reasonable standards - predict that they were not true.
Many doubts also rises the absoluteness of the restriction for the proof
of truth when statements involve a private or family issue. With the exception
of the three explicitly defined situations, truth does not exonerate from
criminal responsibility even when a statement involves a public figure
and is made to protect a legitimate social interest. Polish law does not
allow any balancing of different interests and if the judicial practice
will literally follow what the law says it will essentially infringe the
right to information.
Apart from the provisions mentioned above there are several other norms
which restrict freedom of expression and freedom of the media as well.
Art. 196 penalizes anyone who offends others’ religious beliefs by publicly
reviling an object of religious reverence or a public place of worship.
Art. 256 makes liable anyone who publicly propagates fascist or other totalitarian
regime as well as incites to hatred on account of national, racial, ethnic
or religious differences. According art. 257 liable is also anyone who
publicly defames a person or a group of people because of their national,
racial, ethnic and religious attachments. Although Polish penal law does
not follow a market of ideas approach, all these restrictive provisions
do not seem to directly violate the corresponding European standards. Much
will depend on the judicial practice which will have to balance conflicting
interests and principles, as well as evaluate dangers and consequences
of particular acts. Not each act of disseminating totalitarian ideas or
communicating hate speech should face a reaction of the law. To render
a good decision in such situations Polish courts should find guidelines
in the Strasbourg case law on what is necessary in a democratic society.
Civil Code
All cases of civil libel/defamation are based on art. 23 which provides
for the protection of so called personal goods. One of these protected
goods, which the article explicitly enumerates, is good name. Such a regulation
does not differ from other Western laws. In Polish Civil Code there is,
however, a certain additional rule which is dangerous for freedom of the
press. Art. 448, which was introduced by a novelty to the Code in 1996,
provides that while finding a violation of personal good, the court may
award either pecuniary compensation to the plaintiff or adjudicate "an
appropriate" sum of money for a social purpose which the plaintiff specifies.
The court does it "irrespective of any other means that are necessary to
eliminate results of the violation". This provisions has replaced art.
40 of the Press Act which allowed compensation for a natural person only
in case of deliberate violation, i.e. when journalist acted out of malicious
intent, to discredit or to ridicule another person. Now journalist’s civil
responsibility is not conditional upon the qualified form of intent on
his part.
Civil Procedure Code
Art. 730 § 1 provides rules
that secure claims in civil law suits during the pendancy of cases. Court
may issue an interim/temporary injunction when a claim is credible and
the plaintiff can prove that without this measure he may be deprived of
satisfaction. In practice interim injunction prevents journalists from
publishing materials which are the subject matter of civil actions for
libel. Given that in Poland proceedings in civil cases take usually many
months and even years, the application of the measure results in a serious
restriction of publication. Courts issue injunctions very easily only after
the plaintiff’s declaration that his claim deserves interim protection.
Moreover, it happened that Polish civil courts awarded this measure also
when the publication at issue was not known to the court or even was not
yet existing (!). The Centre for the Monitoring of Freedom of the Press
considers this practice as the most serious and dangerous restriction which
in fact creates a form of preventive censorship. The Centre, accordingly,
postulates an urgent novelty of the rules on interim injunction in media
cases. The novelty may consist in enacting a lex specialis regulation
which would set out higher criteria to evaluate whether the claim is credible.
In addition it should oblige the court to consider if the publication is
not justified by an overwhelming social interest. Moreover, there should
be rules which make interim injunction actually of interim character. According
to the proposal the court would have to decide the case on merits in a
certain time, e.g. seven or fourteen days, and only for such a period the
claim might be secured by interim measures.
Penal Procedure Code
Art. 180 offers journalists, along with doctors and advocates, guarantees
for non-disclosure of professional secrets. §
2 provides that members of the three professions "can be heard as witnesses
about facts which are covered by professional confidentiality only when
it is indispensable for the good of the administration of justice and when
certain circumstances cannot be established by other evidence. Court decides
about hearing or gives permission to hear. The court decision can be complained
of". § 3 specifies that "exemption
of the journalist from the obligation to keep professional secrets is not
applicable to information which could enable to identify the author of
a press material, a letter to the editor or other material of this kind,
as well as to identify people who provided information which was published
or designed for publication, if these people have reserved the right of
non-disclosure of the above data". The protection given by §
3 is not applicable in case of the most serious crimes which are enumerated
in art. 240 of the Penal Code (genocide, high treason, espionage, attack
on life of President, terrorist attack on military forces or an object
of military character, murder, bringing about danger to life, health of
many people or to a property of huge size, hi-jacking, hostage taking).
This regulation has replaced the previous unclear rules which generated
a lot of problems and met criticism of journalists. Now the situation seems
to be much more precise as the law explicitly provides guarantees of non-disclosure
of sources. There is, however, §
5 which reads that the refusal to disclose data specified in §
3 does not exempt the journalist from criminal liability for a crime he
committed publishing the information. This provision opens a possibility
to pursue journalists for certain types of crimes or offences, first of
all for breach of secrecy, when they refuse to reveal the source of information.
In such a case journalist may become the main perpetrator (see case law
below) when the Office of Public Prosecutor cannot identify the informant
by other means.
The plaintiff in this case is the President of the Republic, Aleksander
Kwas niewski, acting as a private person.
The defendant is daily "Zycie", a leading quality newspaper. In August
1997 the daily published a well documented article whose authors stated
that in summer 1994 Aleksander Kwas
niewski, then not yet president, had spent his holiday in a renown resort
at the same time when a Russian citizen, a high rank former KGB agent,
now a businessman, had also been staying there. The authors wanted a president’s
comment on the findings and asked for an interview accordingly. Before
the publication appeared, some news about the content of the material broke
to the public, so it must also have been known to the future plaintiff.
His press office tried to postpone the interview, suggesting that the president
was very busy. After having been waiting for over a week, the newspaper
decided to print the article. Once the publication had appeared, the president
instituted proceedings for civil libel. He demanded a compensation of 2.5
million zloty, which is the equivalent of over 700,000 US dollar. He presented
some evidence that he could not have been in the incriminated place at
the stated time. To make the political background more understandable,
only one more information. The plaintiff, who now declares to be the president
of all Poles, before the election was the most prominent figure of the
post-communist political left. The defendant - on the other hand - is a
daily with strong commitment to anticommunist Solidarity tradition.
Before the court proceedings started, there had appeared a series of
articles and comments written by Polish academics and practicing lawyers
who pointed out that damages demanded in civil cases must be evaluated
in the light of the European Convention. They referred to the case Tolstoy
Miloslavsky v. United Kingdom which requires compensation to be proportionate
and not excessive. In Tolstoy Miloslavsky, the Strasbourg Court
recognized that a court decision awarding £
1,500,000 compensation for libel committed in a pamphlet had violated art.
10 of the Convention. Such an amount was not necessary in a democratic
society and did not assure a reasonable relationship of proportionality
to the legitimate aim pursued in the proceedings. The Court did not, however,
point out what would be the reasonable and the proportionate. According
to some suggestions and practice, test of proportionality may refer to
such elements as the average salary in a particular country or the average
damages awarded when more basic goods are violated, especially in case
of death and injury. In Poland, in the latter situation damages are relatively
low and under communism any compensation for moral suffering was considered
contradictory to new emerging communist morality. By awarding, in the pending
case, any compensation approximate to the plaintiff’s demand, Polish courts
would risk that their judgement be complained to Strasbourg. Judges in
the case must also take into account the fact that if the damages were
awarded according to the plaintiff’s demand it would mean serious financial
problems - and even bankruptcy - of the leading political daily. This consequence
must not be disregarded by the judges as freedom of the press has been
declared one of the most fundamental values important for the proper functioning
of democratic society which are given special protection under the Convention.
2. In autumn 1997 Polish public television and one private station shown
a video tape which depicted police dealings at the time of a local soccer
match. Before this sport event the police detained a group of fans. The
fans were searched for possession of dangerous tools. Before being freed
some fans were forced to say to the police camera that they loved the police
and one boy had to pronounce colloquial phrases which meant confessing
to onanistic practices. The tape was sold by a policeman to fans who subsequently
handed it down to the television stations. The same day the scenes were
several times shown in information journals without any covering or blinding
of the face of the boy who pronounced humiliating words.
The boy’s parents instituted proceedings for a civil libel asserting
that the publication had held him up to ridicule by schoolmates. They demanded
400,000 ZL (about 100,000 USD) from the public television and 200,000 from
the private station. The court recognized that the two stations had infringed
personal goods of the boy by showing his face. The journalists as professionals
should have predicted defamatory results of the depicted scenes and words.
Simultaneously the court pointed out, however, that the stations had not
acted in pursue of sensational materials but with the intention to reveal
illegal practices of the police. In assessing damages the court - said
the judges - must take into account intentions of the perpetrator, harm
which was inflicted as well as the standard of living in Polish society.
Accordingly the court decided to award the compensation of 10,000 ZL (public
television) and 5,000 ZL (private one). For the first time in media cases
Polish court has overtly referred to the requirement of proportionality
between damage and compensation which should be assessed on the basis of
comparison with some economic indices relevant for Polish society. In consequence,
the case can serve as a precedent for many other pending cases where high
and excessive compensation was demanded by the plaintiff. It is also worth
mentioning that the test/requirement of proportionality sounds familiar
to many Western media law and practice as well as makes Polish judicial
activity consistent with European standards.
3. In 1984 three functionaries of the Ministry of Interior had kidnapped,
beaten and murdered priest Popiel uszko,
a Catholic clergyman known for his active support of then clandestine Solidarity.
Because of the strong public reaction to the killing, the existence of
witnesses and many evidence pointing out where to look for the perpetrators,
Communist authorities could not have covered up the murder. The three officers
as well as a deputy director of the ministerial department in charge of
spying Catholic church were sentenced to long imprisonment. In February
1997 Polish tabloid "Super Express" published a story about one of the
perpetrator, Grzegorz Piotrowski. The newspaper wrote that when on temporal
release from jail, Piotrowski would be employed by a woman who is actually
his extramarital daughter. Piotrowski sued the newspaper demanding compensation
of 100,000 ZL for infringement of his personal goods. The court awarded
him 7,000 ZL pointing out that the information concerned private and intimate
life which as a principle must be protected by law. No public interest
justified in this case any limitation of this protection although Piotrowski
became a publicly known person.
4. Mirosl aw Lewandowski v. Filmotechnika.
The defendant is an advertising agency which was sued for having distributed
a poster of the film "People v. Larry Flynt". The poster depicted the figure
of a naked man with crossed arms silhouetted against a background of woman’s
hips. The figure resembled crucified Christ. The plaintiff stated that
the poster violated his religious feelings and demanded apology as well
as compensation of 10,000 ZL paid to a fund for victims of the flooding
in 1997. He stressed that he did not want the introducing of a censorship
but looked for the protection of religious beliefs. The Regional Court
in Cracow rejected the demand and pointed out that the agency did not have
an obligation nor a right to censor the content of materials given it for
distribution. Court of Appeal confirming the decision of the lower court
referred to the European Convention and stressed that according to European
standards individual’s feelings, which are protected by the law, cannot
be treated in absolute terms and must be weighed up against the freedom
of expression of others.
5. In May 1996 weekly "Poznaniak" published an article on homosexual
prostitution which accompanied a picture of two young men. This picture
was taken in entirely different circumstances than described in the article
(in fact during a charity action). The weekly tried to escape liability
by stating that the article had been written by journalists not employed
by the weekly and the weekly had but bought the picture from a freelance
photographer. Moreover, the weekly had twice apologized the wronged persons.
The court found, however, that the publisher was responsible for the materials
because even in this situation he should have acted very diligently. Assessing
the size of compensation, the court decided that although the plaintiffs
had not suffered any serious harm affecting their life plans and the results
of the publication concerned rather "the sphere of fears", they deserved
the damages of 15,000 ZL each (close to their original demand of 20,000
ZL). A similar case happened recently when a newspaper published an article
about Polish tennis player Wojciech Fibak who was interrogated by a Paris
prosecutor in relation with a luxury prostitution affair. The story was
illustrated with a picture of a young woman sitting close to the tennis
star. The picture was taken during an official party and the woman instituted
action for a civil libel. She won the case.
6. When post-Solidarity President Lech Wale
sa was leaving his post to the newly elected post-communist candidate,
Aleksander Kwas niewski, he convened
a meeting of several official persons where he revealed that there were
serious suspicions that a high rank political figure was a mole working
for KGB. Some evidence were collected by Polish intelligence during a secret
abroad operation. The materials suggested that the mole called "Olin" might
have been Jó zef Oleksy, a leading
figure of the post-communist left and then prime minister. He had contacts
with Wl adymir Al
ganow, a higher KGB officer now working as a businessman (it is the same
person who is alleged to have stayed in a renown resort at the same time
when Aleksander Kwas niewski was there
in summer 1994. An article on this led to the civil libel action described
in point 1). The affair stirred a lot of emotion leading to the resignation
of Oleksy from his post. Ultimately the Military Prosecutor’s Office decided
that there was no evidence that Oleksy and "Olin" was the same person and
accordingly terminated the investigation. The reasons of the decision were
partly published but some fragments were made secret. In May 1996 daily
"Zycie Warszawy" revealed a classified fragment which contained the name
of a KGB agent working for Polish intelligence. The Office of Military
Prosecutor wanted to know the source of the leak and demanded this information
from the editors-in-chief. They refused the demand quoting the protection
of journalist’s sources. The prosecutor disagreed and started criminal
proceedings for an act of support in breaching of secrecy. In December
1998 Regional Court in Warsaw decided - on the request of the prosecutor
himself - that the new Penal Code, which came into force on 1 September
1998, entitles the journalist to non-disclosure of his sources. The only
explicitly enumerated exceptions when the journalist may be asked to reveal
sources of information concern a limited group of the most serious crimes
which does not include breaches of secrecy.
In the light of the aforementioned decision as a surprise must come
another case concerning the same spy affair. Jerzy Jachowicz, a journalist
working for the biggest Polish daily "Gazeta Wyborcza", revealed the name
- very likely not true but "operative" - of a Polish intelligence officer
who had participated in the abroad operation mentioned before. The journalist
refused to disclose his source of information and was then accused not
only of an act of support in breaching of secrecy but of a breach of secrecy
itself. In January 1999 the prosecutor has terminated proceedings for the
act of support (non-disclosure of sources) but the case for the breach
of secrecy is still pending before a Circuit Court in Warsaw. Such a practice
may be a dangerous precedent because on the one side the Prosecutor’s Office
accepts the protection of sources but on the other it institutes proceedings
on a more serious legal basis.
7. Andrzej and Monika Kern v. "Agora" Weekly. In August 1992
Andrzej Kern, then Deputy Speaker of Polish Parliament, made a special
television appeal for help in searching his daughter Monika, a high school
student, who had disappeared. He also informed about the disappearance
the Prosecutor’s Office which started an investigation for kidnapping accordingly.
It was becoming, however, very quickly increasingly apparent that the circumstances
were entirely different. The girl had a love affair and escaped with a
boy. The boy’s parents supported the couple and refused to give any information
about the place where the two were hiding. When the prosecutor could not
find the mother of the boy to hear her he issued a warrant of caption (a
"wanted" notice) and later on even arrested her. Her advocate became Michal
Plisiecki who in an interview to "Agora" said that Andrzej Kern (also a
barrister) had misused his power, called him a liar and put in doubts his
qualification as a parent. The weekly wanted an interview with Anrzej Kern
but he refused the offer.
After a few years Monika has returned to her parents (in the meanwhile
she married and divorced). The Kerns instituted a civil action for libel
stating that the publication had infringed their personal goods and especially
their right to privacy. They demanded apology and compensation. The court
of first instance recognized that Andrzej Kern had contributed to making
the affair public and - as a result - to the growing interest media had
in it, but despite this element the weekly should have censored the interview
because it dealt with the intimate sphere of family relations. In the Court
of Appeal the lawyers for the weekly argued that Andrzej Kern was a public
person and this qualification justified writing about his private and family
life. It is also apparent that he contributed to the interest in the affair.
Moreover, continued the lawyers for the defendant, the court should differentiate
the newspaper’s own comment from the interview, especially when interviewed
is a professional person about issues of his professional activity. In
the latter situation, the publisher may rely on what the interviewed has
said and any censorship in such a case would amount to an unacceptable
limitation set on freedom of information. The plaintiff’s advocate opposed
this argument by stating that the law affords the protection of private
life to everybody, be it a private or public person. The court upheld the
decision of the first instance changing only slightly the words of apology.
It stressed that this part of interview which concerned the alleged misuse
of power was a legal opinion that did not need verification by the publisher.
In consequence, the weekly cannot be held liable for what said the lawyer
(that is where the court changed the content of apology). "Agora" is, however,
responsible when the interview touched private and family matters.
The lawyers for the weekly has lodged a cassation to the Supreme Court
and are considering an action to the Strasbourg Court if this decision
dissatisfies them.
Interim injunctions have been applied in several important cases: