Media Pluralism in KRRiT-ical Condition

In April 2023, the Chairman of the Polish National Broadcasting Council imposed a 80.000 PLN (that is 20.000 Euro) fine on Inforadio, the owner of the independent TOK FM radio station (the ‘TOK FM case’). The Broadcasting Council, or Krajowa Rada Radiofonii i Telewizji (KRRiT) in Polish, found unfavorable statements about a highly debated – and government supported – history textbook to violate the Polish Media Act (Ustawa o radiofonii i telewizji). However, the decision of the KRRiT Chairman imposing the fine fails to consider the broader context of freedom of speech and the protection of opinions and value judgments. The comments made by the journalist and his guests were part of a public debate on a controversial author and his book, triggering significant social interest. Thus, the imposition of a substantial penalty may be seen as an attempt to suppress criticism and create a chilling effect on discussions about the book. Importantly, the lack of a proper justification for the decision, provokes the thought that it was political in its nature and not based on merits.

At the same time, this is not the first controversial decision of the KRRiT in recent years. One of the most severe examples is a 1,5 million PLN (approx. 330.000 EUR) fine imposed on TVN, a TV station, which was withdrawn after massive protests of journalists and NGOs.

The growing number of KRRiT decisions targeting independent media in Poland is the result of the political nature of the procedure for appointing members of the KRRiT and the broad, unclear legal basis for imposing fines. Since 2005, the decisive voice in the composition of the KRRiT was that of the ruling political majority (which appoints four out of its five members). KRRiT’s current Chairman, Mr Marcin Świrski, was the founder of Reduta Dobrego Imienia (an NGO aimed at protecting the “good name” of Poland and Poles) and is widely known as a blatant critic of the independent TVN TV and other independent, liberal media outlets.

The KRRiT has substantial competences, including the right to decide on the attribution of broadcasting licenses and imposing fines on broadcasters who promote attitudes and views contrary to morality and public good or disrespecting the Christian value system. The imprecise, broad, and unclear notions enshrined in Polish media law, leave substantial discretion to the KRRiT and its Chairman. The political capture of the KRRiT’s Council, combined with its much too broad competences, open the way to the harassment of independent media and discourage from critical commenting.

This article investigates the details of the TOK FM case, places it in the context of the freedom of expression standards – which were disregarded by KRRiT Chairman – and finally analyzes the systemic problem concerning the (lacking) independence of the Polish media watchdog.

The disrupting playbook

As already mentioned, on 24 April 2023, the Chairman of the National Broadcasting Council imposed a penalty of approx. 20 000 EUR on TOK FM for a broadcast in which the editor Piotr Maślak commented on the textbook “History and Present” authored by Prof. Wojciech Roszkowski.

The TOK FM journalist, in the broadcast aired on June 7, 2022, stated: “It reads like a manual – I apologize for this comparison – for Hitlerjugend. Occasionally, not everywhere.” The host and his guest cited parts of the book, which reveal xenophobic attitude towards some social groups, races, or gender. In other words, the textbook was used hate speech. Both the journalists and the guest argued that it was the journalist’s duty to denounce hate speech and express opposition to hate speech’s normalization in history textbooks.

In its decision, the KRRiT argued that the broadcaster violated Art. 18 paragraph 1 of the Media Act. According to that article

“broadcasts or other transmissions may not promote actions contrary to the law, Polish raison d’etat, and attitudes and views contrary to morality and public good, in particular they may not contain content inciting hate or violence or discriminating on the grounds of sex, race, skin color, ethnic or social origin, genetic features, language, religion or beliefs, political views or any other views, nationality, belonging to a national minority, wealth, birth, disability, age or sexual orientation or inciting to commit a crime of a terrorist nature”.

According to Art. 53 paragraph 1 of the Media Act, if a broadcaster violates the obligation resulting from the provision of Art. 18 paragraph 1 of the Act, the Chairman of the KRRiT issues a decision imposing a financial penalty on the broadcaster up to 50% of the annual fee for the right to use the frequency intended for broadcasting the program, taking into account the scope and degree of harm of the violation, the broadcaster’s past activity, and its financial capabilities.

By imposing the penalty, the Chairman of the KRRiT noted that “journalists have the right to describe events that may outrage society. However, there is a requirement that it should be done with professional diligence and reliability in collecting and using materials”. The decision, which was formally issued by the KRRiT Chairman, is not final and the broadcaster may appeal to the courts.

Standards for the protection of freedom of speech

The decision of the Chairman of the KRRiT in the TOK FM radio case, does not take into account the standard according to which not only favorable statements should be protected but also those that shock, offend, or disturb the recipients. According to ECtHR jurisprudence, broad protection is given to statements made in the public interest as contributions to public debate. A characteristic of Article 10 of the Convention is that it protects expression that entails a risk of harming the interests of others or actually harms them. Opinions expressed in harsh or exaggerated language are also protected; the extent of this protection depends on the context and purpose of a given critical statement.

For a while, the commented textbook aroused social interest and sparked lively debate. The textbook is raising substantial public debate in Poland, as well as mockery and outrage on social media. The book mixes historical facts with negative comments toward, e.g. in-vitro fertilization, gender, or feminism, comparing them with authoritarian ideologies. The book has also been criticized for too many random factoids being thrown around, while the text lacks any references to historical sources, making it harder for young people to grasp the historical process of the past eight decades. Thus, the TOK journalist’s voice was part of the broader public debate on matters of public interest and, as such, was subject to broad protection under Article 10 of the ECHR.

The ECtHR indicates in its jurisprudence the need to distinguish facts from opinions (value judgments). The latter constitute a subjective assessment by the speaker, and thus cannot be qualified in the context of truth or falsehood. In other words, opinions should not be assessed by national bodies in terms of truth, and the person expressing them should not be obliged to prove them. The statement of editor Piotr Maślak was an opinion, a value judgment, which cannot be subjected to proof, and thus cannot be assessed in terms of truth or falsehood, as the Chairman of the KRRiT did, accusing the journalist of a lack of reliability in gathering materials.

Moreover, the imposition of a significant penalty (80,000 PLN) by the Chairman of KRRiT aims to create a chilling effect, that is, an attempt to suppress comments on the textbook authored by Prof. Wojciech Roszkowski, not only from TOK FM but also from other broadcasters.

Ignoring such basic principles of freedom of expression by the KRRiT Chairman raises doubts as to the nature of the intervention and triggers the thinking it was politically driven and its main goal was to silence the broadcaster and, by extension, stymie the debate around the handbook.

Media Act deficiencies

One of the most important competences of the KRRiT is granting licenses for broadcasting radio and television programs. The Council also has the right to control the content of broadcasts disseminated by the controlled broadcasters. It is precisely against the background of exercising these competencies that KRRiT has for years been accused of acting as a contemporary censor on behalf of the Polish government.

The material basis for the control of broadcast content exercised by KRRiT is enshrined in article 18 of the Media Act. However, the concepts used in Article 18 of the Act are undefined. Therefore, their interpretation always depends on the position of KRRiT and the worldview presented by its members. In this context, a politically and ideologically broad membership in KRRiT promotes a rational balance of different views and opinions on a given topic, and as a result, rational decision-making. However, if KRRiT starts to be dominated by one political camp, its interventions and imposed penalties can be extremely dangerous, and even curtail debate on certain topics (see further here).

In the situation of rational use of competencies by KRRiT, i.e., conducting explanatory proceedings with the participation of publishers, and possibly punishing only in the situation of actual violation of the law, the provision of Article 18 of the Act would probably not raise much controversy. However, due to the strong politicization of KRRiT, this provision is used in situations that do not deserve it. The politicization of KRRiT means that the above instruments become extremely dangerous, as they constitute a tool for punishing or harassing independent broadcasters, especially those criticizing the government. They can also be an instrument for imposing a specific worldview or morality. These types of practices from KRRiT are aimed at “chilling” broadcaster’s speech.

The situation is even more perilous when thinking that decisions of the KRRiT Chairman are taken into consideration upon deciding on the broadcasting license extension, which should happen for TOK FM later this year. Especially, in light of the denial of extension of license to TVN24 back in 2021.

The KRRiT is composed of 5 members elected by Sejm (2 members), Senat (1 member) and the President of Poland (2 members). The new practice where the Chairman of KRRiT unilaterally decides on imposing penalties on broadcasters, without consulting the rest of the KRRiT members or even informing some of them about the decision. According to the Constitution, the KRRiT is a collegial body. Even if according to the Media Act penalties are imposed by the decision of the Chairman of KRRiT, the legislator’s intent was to achieve consensus and stimulate debate over specific potential infringements of the media law among all KRRiT members, respecting the constitutional principle of collegiality.

This is further complicated by the procedure before the KRRiT. Based on even one listener complaint, KRRiT informs broadcasters of objections and asking for explanations. Such a practice means that particularly active broadcasters that discuss controversial theses may feel harassed by all the user complaints forwarded by KRRiT. The necessity to respond to every letter and, among other things, send appropriate recordings, can significantly hamper the daily operations of the broadcasters.

The legislator left KRRiT the possibility of developing a practice in the field of evaluating broadcaster activities and their potential penalization. Cases of imposing penalties for statements that fall within the boundaries of constitutional and conventional freedom of expression cause KRRiT to violate the institutional trust of broadcasters, using available legal instruments and procedural ambiguities, for political purposes or promoting their own moral worldview.

Outlook

Article 213 of the Polish Constitution states that “[t]he National Broadcasting Council guards the freedom of speech, the right of citizens to information, as well as safeguards the public interest in radio broadcasting and television”. In guarding the public interest, the KRRiT must ensure that freedom of speech is not restricted and can be freely exercised. Thus, in making his decisions, the Chairman of the KRRiT should be guided, among other things, by the case law of the European Court of Human Rights. The decision taken against Inforadio, owner of TOK FM, does not meet this condition. Put more drastically, the decisions entirely contradicts the standards of protection of freedom of speech as enshrined in the Polish constitution and the European Charter of Human Rights.

The protection of freedom of speech in the private media sector in Poland is even more important in a situation where the reform of public media carried out in 2016 impeded public media outlets’ ability to impartially report on the activities of public authorities. Private media have thus become the only source of critical or ‘inconvenient’ information concerning the government. Harassing private media outlets with severe penalties for reporting events of significant public importance can, under these circumstances, be perceived as a brutal attempt to limit pluralism in the Polish media market.

The TOK case analysed here is another example of serious consequences in terms of respecting (or rather disrespecting) the standards of freedom of speech, resulting from the politicization of the constitutional regulatory body. International institutions, including the European Commission, should duly note instances of abuse of powers by the media regulatory bodies, their political capture and lack of independence. Both the EU Audiovisual Directive and the proposed EU Media Freedom Act refer to broadcasting authorities as independent institutions. The proposed EU Media Freedom Act introduces a new institution of European Board for Media Services, composed of representatives of national broadcasting authorities. In the light of the developments in Poland covered in this piece, one cannot help but wonder if the European Commission and other European media regulators are ready to regularly meet and cooperate with KRRiT, a body blatantly ignoring the most basic standards of freedom of expression?