ARTICLE 19 calls on the new Polish government to undertake comprehensive reforms to restore rule of law, improve protection of freedom of expression and media freedom and reverse the erosion of civic space. The government should bring its legal framework on freedom of expression in compliance with international human rights law. It should support media pluralism and recognise and counter the continued threats to independent journalists and activists. The new government should also firmly commit to protecting marginalised and discriminated groups and ensuring the right to public participation. Last but not least, the government should prioritise restoring the rule of law by addressing the lack of judicial independence.
As Donald Tusk assumed the role of new Prime Minister on 13 December 2023, the transition of power in Poland became official. The new Polish government faces a great challenge to meet anticipated expectations and redirect the country from the illiberal path pursued by the outgoing coalition, led by the right-wing Law and Justice party (Prawo i Sprawiedliwość – PiS). ARTICLE 19 urges the Government to prioritise the following five key areas that are paramount in this process.
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Decriminalise blasphemy, defamation and insult and adopt comprehensive anti-SLAPP legislation
Blasphemy
Offending religious beliefs is a crime under Article 196 of the Criminal Code. Individuals who publicly insult an object of religious worship or a place designated for public religious ceremonies can face penalties, including fines, limited liberty, or imprisonment of up to two years.
ARTICLE 19 has long advocated for the repeal of blasphemy laws, including in Poland, drawing upon the jurisprudence of the European Court, the UN Human Rights Committee, as well as observations of the special procedures of the UN Human Rights Council, and various resolutions of regional and international human rights bodies. Moreover, ‘religious insult’ laws violate international standards due to their discriminatory impact on the freedom of expression rights of those who do not identify themselves with a certain religious group.
We have also raised concerns about how blasphemy provisions have been used to restrict artistic expression and minority groups in the country. For instance, three activists were prosecuted under blasphemy provisions after displaying posters of the Virgin Mary adorned with a rainbow halo during a protest. While they were acquitted in the initial instance, the case is still ongoing and is scheduled to be heard by the Supreme Court in late March this year.
The new government must urgently repeal Article 196 of the Criminal Code and make sure that all the pending prosecutions under these provisions are immediately dropped.
Defamation and SLAPPs
The new government should also urgently repeal Article 212 which regulates the criminal offence of defamation, and Article 216 of the Criminal Code, which prohibits the crime of insult. These provisions are incompatible with international human rights standards and have been repeatedly used to stifle independent journalism and reporting.
ARTICLE 19 has long argued that criminal defamation laws are unnecessary and disproportionate responses to damages to reputation. Instead, where appropriate, civil law remedies constitute a better response to an unjustified attack on one’s reputation. Civil defamation laws are a less intrusive means and, if necessary and proportionate, should be used instead of criminal laws.
At the same time, decriminalisation of defamation must be accompanied by other reforms. ARTICLE 19 previously documented that journalists, activists and other public watchdogs in Poland are subjected to one of the largest number of so-called SLAPP lawsuits (strategic lawsuits against public participation) in the European Union. This trend became alarmingly pervasive during the last eight years of PiS-led government. Affiliates of the previous government, including government ministers, and state-owned companies routinely lodged SLAPPs cases under the guise of defending their reputations or rectifying perceived falsehoods. Independent media outlets, such as Gazeta Wyborcza, have been particularly hard-hit, with up to 100 SLAPP cases concurrently filed against them. Journalists face a wave of defamation cases, including criminal procedures that could result in imprisonment, based on their investigative work.
ARTICLE 19 believes that the new government must firmly denounce these abusive practices and, at minimum, adopt a series of measures outlined in the proposed EU anti-SLAPP Directive, such as a mechanism for early dismissal of SLAPP suits and a cap for compensation for damages. However, the government has the opportunity to go beyond the benchmark set by the EU proposal and follow recommendations and standards developed by the Council of Europe. For instance, the Council of Europe’s proposals include more detailed legal and policy measures on how to address SLAPPs.
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Reform public service media
Since 2016, the public service media in Poland has undergone an unprecedented takeover by political powers, transforming both public TV and radio into government mouthpieces. Public TV (TVP) played a pivotal role in amplifying the government’s discriminatory rhetoric against minority groups, in particular the LGBTQ+ community and migrants.
The revival of public service media demands a comprehensive reform in its management and funding to liberate it from political influence and control. Every decision in this process must align with the objective of ensuring that public service media effectively fulfils its intended role in assuring media freedom and diversity. Those entrusted with decision-making responsibilities in the public service media should be selected based on merit, skills, and experience rather than being swayed by political affiliations. Transparency and openness in the selection process are imperative to prevent undue political influence.
The new government has already initiated the overhaul of state media. Since coming to power, it has dismissed the supervisory bodies of TVP and national news agency PAP and launched the procedure of liquidation of the public media. There are reports that a new law on public service media is being developed by the government.
While ARTICLE 19 acknowledges that serious changes are needed, we believe that the reform process must not perpetuate a cycle of capture and control, a pattern exploited by the Law and Justice Party. The government must ensure that all reforms to the media space in Poland adhere to democratic values and follow the rule of law. The reform process must be conducted transparently and through a consultation with stakeholders. It should address concerns raised by media and human rights organisations and allow all stakeholders to actively contribute to the discussion.
Reforms should extend to strengthening the independence and impartiality of the independent regulator for audiovisual media, aligning with international standards on freedom of expression. In particular, we urge the government to carefully consider and implement all our recommendations regarding the future of the public service media that we made jointly with the Media Freedom Rapid Response (MFRR) prior to the elections in September 2023.
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Improve protection for the LGBTQ+ community in law and in practice
LGBTQ+ people in Poland were targets of numerous smear campaigns under the PiS-led government which vowed to combat ‘LGBT ideology’. Throughout the European Parliament (2019), general (2019), and presidential (2020) election campaigns, LGBTQ+ rights emerged as a central, polarising topic. The community was unjustly scapegoated as a supposed threat to ‘traditional family and values’. Prominent officeholders publicly used dehumanising language against non-heterosexual individuals.
ARTICLE 19 calls on the new government to adopt a series of measures – including in the fields of education, social security, health care, sport and culture – for tackling prejudice and discrimination against LGBTQ+ people in the country. Public information and education campaigns are essential to combating negative stereotypes of, and discrimination against, LGBTQ+ people and fostering safe environments for them.
The government should strengthen anti-discrimination legislation and ensure that sexual orientation and gender identity are included among protected characteristics in prohibitions of incitement to violence and hate crime provisions.
Public officials, including politicians, should realise that they play a leading role in recognising and promptly speaking out against intolerance and discrimination, including instances of ‘hate speech’. This requires recognising and rejecting the conduct itself, as well as the prejudices of which it is symptomatic, expressing sympathy and support to LGBTQ+ individuals and groups, and framing such incidents as harmful to the whole of society.
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Protect the right to protest
Numerous court rulings and amendments to legislation enacted by the PiS government have heavily curtailed the right to protest in Poland over the last eight years. There are numerous reports demonstrating how the authorities violated protesters’ rights in several ways, including the use of tear gas and pepper spray, random detention of peaceful protesters, and abuse during arrest and detention. We have documented numerous cases of violations of the right to protest in Poland, including as part of our #FreetoProtest campaign.
In addition, the amendments to the Law on Public Assemblies, passed in 2016, enabled the authorities to block unwanted protests by organising ‘cyclical assemblies’, which take precedence over others. Restrictions on organising simultaneous assemblies render it impossible to organise effective counter-demonstrations.
ARTICLE 19 calls on the new government to ensure that the legislation related to protest is reformed in line with international human rights standards. Moreover, police officers should be adequately trained in the policing of assemblies in line with international and domestic human rights law standards, including regarding the use of force. This must include training on crowd facilitation, de-escalation of violence, and implicit bias training.
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End surveillance
The PiS Government has faced accusations of employing surveillance spyware, including Pegasus, against several opposition figures. Polish authorities’ use of Pegasus was first exposed in December 2021 when the Associated Press, in collaboration with researchers at the Citizen Lab at the University of Toronto, reported its deployment against at least three individuals. Among those targeted was Civic Platform MP Krzysztof Brejza, renowned for revealing misconduct and questionable decisions that pointed towards corruption and nepotism within the government at that time.
Following the mounting accusations regarding surveillance, in January 2024 Sejm (the lower chamber of the parliament) established a parliamentary commission of inquiry to investigate the use of Pegasus and equivalent surveillance spyware. ARTICLE 19 welcomes this step and stresses that the commission must operate in a transparent manner and refrain from engaging in disputes for political gain, but rather fully dedicate itself to examining the issue and its scale in order to prevent similar situations from reoccurring.
The spy allegations should prompt a broader discussion on the functioning of the mandate of the country’s secret services. Currently, surveillance is on the rise due to the expanded statutory powers of the secret services, a broad range of offences justifying operational control, and the adoption of advanced surveillance techniques. The authorization for operational control and surveillance is dispersed among various legal acts, with Polish legislation equipping over ten secret services with the authority. This is justified, among other reasons, by the necessity to identify potential national security threats and combat terrorism.
The new government should ensure that there is transparency and oversight of the work of the secret services and prioritise the safety of citizens including public watchdogs and not violate their right to privacy under the guise of national security.
ARTICLE 19 will closely monitor the new government efforts and actions in these areas. We stand ready to lend our expertise in the reforms aimed at improving the protection of freedom of expression and human rights. We are keen to share our expertise and to being part of potential public consultations alongside other civil society actors.