Government attempts to muzzle independent media by controversial anti-TVN law

Background

On 10th August 2021, Poland’s ruling coalition collapsed. Prime Minister Mateusz Morawiecki fired his deputy, Jaroslaw Gowin, the leader of the Accord party, a junior party in the government coalition, over disagreements on controversial media law (more below under expression) and tax policy.

New Ombudsman

The current ombudsman, Adam Bodnar served his last day on 15th July 2021, three months after the government-controlled Constitutional Tribunal decided to remove him from his functions. His successor is Marcin Wiacek, a professor at the University of Warsaw who specialises in constitutional law and human rights. He was proposed by the Polish Coalition, an alliance of Polish parties and, in early July 2021, the ruling Law and Justice party (PiS) unexpectedly supported the candidacy. The Sejm, Poland’s lower house of parliament, appointed Wiacek on 8th July 2021, and the Senate, the upper house, approved the appointment on 21st July 2021. Wiacek has announced that he will not withdraw the appeal filed by the previous Ombudsman in relation to the take-over of Polska Press by state-controlled oil company PKN Orlen (see previous update). 

Rule of law dispute between Polish and top EU courts

The European Court of Justice (ECJ) ruled on 14th July 2021 that Poland’s disciplinary regime for judges – a recently created body that disciplines Polish judges and has the power to lift their immunity or cut their salaries – is “not compatible with EU law”. The court found that the chamber “does not provide all the guarantees of impartiality and independence and is not protected from the direct or indirect influence of the Polish legislature and executive”. The ECJ also questioned the independence of the National Council of the Judiciary (NCJ), a public body responsible for nominating judges. In its press release, the court tasked the Polish authorities to "take the measures necessary to rectify the situation."

In response, Poland’s top court, the Constitutional Tribunal, ruled that the injunction by the ECJ is incompatible with the Polish constitution. "With the best will to interpret the constitution, it is impossible to find in it the powers of the (EU) Court of Justice to suspend Polish laws concerning the system of Polish courts," said Constitutional Tribunal judge Bartlomiej Sochanski. Some fear that these moves are the beginning of a “Polexit” (Poland's exit from the EU).

The European Commission in return threatened Poland with financial penalties if it disregarded the ECJ’s ruling. On 17th August 2021, Poland announced in a press release that it would comply with the ECJ’s decision and disband the disciplinary chamber. Nevertheless, some warn that taking into account how the constitutional profile of the country has changed in the last six years, the abolition of the Disciplinary Chamber and the idea of the creation of a new chamber compliant with Constitutional and European standards must be approached with caution.

In an independent yet related development on 22 July 2021, the European Court of Human Rights (ECtHR) ruled that the Disciplinary Chamber did not meet the standard of a “right to a court established by law” guaranteed under Article 6 § 1 of the European Convention. According to Marcin Szwed, assistant professor at University of Warsaw and lawyer at the Helsinki Foundation for Human Rights, the ruling calls into question not only the status of the Disciplinary Chamber but also other courts in Poland, as the reason why ECtHR found that the Disciplinary Chamber did not meet the standard of a “right to a court established by law” applies to other courts in Poland too.

This appears to be the legal opinion of some judges too. Jacek Tyszka, a judge at the Warsaw District Court, sent a letter on 28th July 2021 to the president of the District Court, stating that he would not adjudicate in panels with persons appointed by the NCJ, whose members are elected in the Sejm, where PiS until recently enjoyed a majority. Tyszka wrote that "the current National Council of the Judiciary does not fulfill the function of guarding the independence of courts and judges".

Association

The founders of The Atlas of Hate, a website that maps local municipalities that passed anti-LGBTI resolutions or adopted a charter written by the ultra-conservative Catholic organisation Ordo Iuris Institute, are being sued by the so -called “LGBT-free” municipalities. The first of six lawsuits w opened on 20th July 2021.

“They are trying to shut us down once and for all by suing us and asking for ridiculous retribution payments,” Jakub Gawron, one of the founders, said.

In 2020 the Atlas of Hate was nominated for the Sakharov Prize by the European Parliament. A crowdfunding initiative was launched by NGO All Out to help the activists in their legal battle.

A few days earlier, on 15th July, the European Commission announcedit would take legal action against Poland (and Hungary) for violating the rights of LGBTI people. The Commission highlighted the resolutions adopted by several Polish municipalities and regions to create so-called “LGBT-ideology free zones”. “Europe will never allow parts of our society to be stigmatised” said EU Commission President Ursula von der Leyen.

In an unrelated development, on 23rd June, at 11:00, Bartosz Kramek, a Polish activist and the Chair of the Supervisory Board of the Open Dialogue Foundation (ODF), a Poland-based international NGO, was arrested at the request of the Regional Prosecutor’s Office in Lublin. Kramek is apparently facing charges of embezzling and money laundering. Lech Wałęsa, former President of the Republic of Poland and Nobel Peace Prize laureate believes that the charges are politically motivated and, along with several international academics and activists, urged Polish authorities to release him from pre-trial detention.

Peaceful Assembly

In early July 2021, the Supreme Court ruled that the government’s ban on public assemblies introduced on 9th October 2020 was illegal and contrary to Article 57 and Article 31 (3) of the Constitution. In a case brought forward by the then Ombudsman Adam Bodnar, the Supreme Court acquitted two men who were fined 500 zlotys (about 110 Euros) for participating in protests on 24th October 2020. This is the first such ruling of the Supreme Court on the government’s ban on assemblies.

On 9th July 2021, an indictment against Marta Lempart, Klementyna Suchanow and Agnieszka Czerederecka was announced by the spokesman of the District Prosecutor’s Office in Warsaw. The three activists from the Polish Women’s Strike (StrajkKobiet) are accused of causing an epidemiological threat for organising protests during the pandemic in October, November and December 2020 against the government’s near-total abortion ban. Klementyna Suchanow is in addition charged with three further offences: causing domestic disturbance, destruction of or damage to another’s property and infringement of an officer’s physical integrity. This comes after she hung posters on the building of the Constitutional Tribunal and spilled red paint on a police officer’s uniform.

On 19th July 2020, protests organised by the Polish Womens Strike, took place at the headquarters of the Ministry of Education and Science in Warsaw. The protest was a reaction to the statement made by an advisor to the Minister of Education, Paweł Skrzydlewski, who believes that female virtues in women must be strengthened. Protestors, including students, carried banners about virtues they think should be strengthened, such as “knowledge”, “courage”, “solidarity” and “independence”.

Expression

Lex TVN bill

Despite nationwide protests, a highly controversial draft amendment to the Broadcasting Act was adopted in the Sejm on 11th August 2020 by a vote of 228 to 216, with 10 abstentions. The amendment limits media ownership of organisations from outside the European Economic Area (EEA) to no more than a 49% stake in any Polish media firm. It has been dubbed ‘Lex TVN’ because the only broadcaster directly affected by the amendment is private broadcaster TVN from the Discovery: American media group, which is extremely critical of the government. With the bill passed, Discovery may have to sell a majority stake. The person behind the bill, Marek Suski, a member of parliament from the PiS party, has openly stated that he would like Polish businessmen to buy the shares so that PiS “will have some influence on what is happening on this television”.

After Sejm’s adoption of the law, the Senate has 30 days to agree on it. If the law is rejected by the opposition-held Senate, an absolute majority is needed in the Sejm to overcome the Senate decision and for ‘Lex TVN’ to become law.

The International Press Institute urged the Senate to reject this bill.

“The passing of this anti-TVN law by the Sejm is a significant step forward in the ruling party’s multi-year effort to muzzle one of its biggest media critics and the most disturbing attack yet on independent media in Poland. This law has always been about one goal: slicing through TVN’s ownership structure, opening the door to government-allied entities to acquire stakes, and ultimately engineering a shift in editorial position to one more favourable to PiS. These calculated efforts to push out foreign capital and ‘repolonise’ the media landscape ahead of legislative elections are right out of the Fidesz playbook in Hungary. This is media capture in action,” said IPI Deputy Director Scott Griffen.

The Polish National Broadcasting Council (KKRiT), which is under PiS's control, is responsible for awarding licences. The licence of TVN’s main news channel, TVN24, is set to expire on 26th September 2021. TVN’s owners submitted an application to extend the licence more than a year ago. Although the KRRiT is obliged to award a licence within 12 months of the application, the council delayed the decision. Based on the legislative developments, it is clear that the delay in licensing is part of a strategy to remove the TVN Group from the Polish media market.

Discovery has threatened Poland with legal action under the bilateral investment treaty between the United States of America and Poland.In a statement the company said:

“The notification follows Poland’s discriminatory campaign against Discovery’s TVN, including its refusal to renew TVN24’s broadcasting license, and culminated in the vote yesterday in the lower house of the Polish Parliament to pass legislation that would ban upstream foreign media ownership in the country.The legislation is the latest assault on independent media and freedom of the press, and takes direct aim at Discovery’s TVN, the country’s leading independent broadcasting group and news provider, as well as one of the largest U.S. investments in Poland.”

On 16th August 2021, the TVN Management Board announced that it had applied for a Dutch broadcasting licence. The statement reads:

“In the event the National Broadcasting Council does not renew the TVN24 license by the 26th September 2021, it will be the Dutch license that will allow us, in accordance with Polish and EU law, to continue broadcasting.”

Motion of no confidence against Minister of Education and Science rejected

A motion of no confidence was submitted during June 2021 by the Civic Coalition against Poland’s ultra-conservative and nationalist Minister of Education and Science, Przemysław Czarnek, who is known for his anti-LGBTI and anti-women’s rights stance. However, the motion was rejected in the Sejm on 21st July 2021. Cezary Tomczyk, the head of the Civic Coalition, the PiS’s main opposition party, has called Czarnek, the “worst possible education minister”. One of Czarnek’s main initiatives in his fight against the “totalitarian dictatorship of left-liberal views” is the “Academic Freedom Package”, which aims to protect conservative views at universities.

Holocaust scholars win appeal

A Polish appeals court overturned the sentence against two respected Holocaust scholars accused of defamation in a case that raised concerns over academic freedom in Poland. In February 2021, a judge had ordered Barbara Engelking, director of the Polish Centre for Holocaust Research, and Jan Grabowski, professor of history at the University of Ottawa, to apologise for including “inaccurate information” in their book about Poland’s Second World War past. The suit was brought forward by Filomena Leszczyńska, the niece of a wartime mayor, who in the book is accused of complicity in a local massacre of Jews. Leszczyńska’s litigation was supported by a partly state-funded organisation dedicated to protecting the “good name of Poland and that of the Polish nation.” The Warsaw-based organisation, unhappy with the overturned verdict, will turn to the Supreme Court.

Artist questioned over “Virgin Mary” image

In June 2021, Polish artist and graphic designer Marta Frej was questioned by the Public Prosecutor’s office in Warsaw over an image she created of the Virgin Mary wearing a face mask featuring a lightning bolt - a symbol which has become known in the fight for reproductive rights in Poland. The investigation is related to the potential breach of Article 196 of the Polish Criminal Code under “insult to religious feelings.” The image was published by Wysokie Obcasy, a women’s magazine related to Gazeta Wyborcza, in December 2020.

Journalists muted and surveilled

On 1st July 2021, journalists from three different media outlets: TVN24 reporter Małgorzata Telmińska, Fakt reporter Krzysztof Michnicz and Aureliusz Łojewski from "Fakt" TVN, had their mics muted at an online press conference for questioning a government minister about a controversial e-mail leak. The journalists had attempted to pose questions about the emails to the head of the Chancellery of the Prime Minister, Michał Dworczyk, who was taking part in the press conference about plans for a greater COVID-19 vaccination drive. His emails were among those suspected to have been posted online after a major hack of government email accounts. When journalists kept asking questions about the emails and requested comment from Dworczyk on the scandal, their microphones were muted one by one.

During July 2021, Jacek Harłukowicz – a Wrocław-based reporter of Gazeta Wyborcza – revealed he was being surveilled and smeared by unidentified persons following his investigation into the so-called “Wrocław scheme”, which looked into a supposed group of businessmen and politicians loosely associated with the public relations and lobbying agency R4S (co-owned by a former spokesman of PiS). On 14th July 2021, an anonymous open letter to the journalist was published on Wordpress, accusing him of sexual harassment, alcoholism, mobbing and being a member of the “scheme” himself. The letter also stated that Harłukowicz was being followed and recorded. Pictures of the journalist’s home were also posted from an anonymous account and a recording of the journalist on a phone call with his source was posted on YouTube but later deleted. A case was reported to the prosecutor's office.