This article belongs to the debate » Poland's Rule of Law On The Ballot
20 October 2023

Restoring Poland’s Media Freedom

Over the last ten years, PiS has not only systematically dismantled Poland’s rule of law, but also strategically corroded the country’s media freedom. Thus, it has successfully politicized Poland’s media regulators, abused public service media for propaganda purposes, captured private media outlets and supported friendly private media, and created regulatory, legal and political obstacles for private media which criticized it.

In this blogpost, I will detail three core steps that must be taken to restore media freedom in Poland in conformity with European standards. In particular, I argue for the restoration of the National Broadcasting Council (KRRiT), the constitutional media regulator, as an independent body; the dissolution of the „bonus” media regulator introduced by PiS, the National Media Council; and for reforming the status of Poland’s private media and the government’s approach to the media in general.

While Sunday’s elections are likely to produce a government with a sufficient parliamentary majority to enact the proposed legislative changes, President Andrzej Duda, who formally remains independent but hails from the Law and Justice (PiS) party, can veto the laws passed by the parliament. This could ultimately threaten the prospect of any real reforms.

The Capture of the National Broadcasting Council

Article 30 of the Audiovisual Media Services Directive (AVMSD) requires EU member states to ensure that media regulators are functionally independent of their governments and of any other public or private entity. The European Media Freedom Act (EMFA), recently adopted by the European Parliament, references this standard in Article 7. Currently, Poland’s constitutionally mandated regulator, the National Broadcasting Council (Krajowa Rada Radiofonii i Telewizji—KRRiT) which supervises public and private media does not meet this requirement of independence. Thus, since 2016, PiS has staffed KRRiT with people having close links to the governing majority and President Andrzej Duda, thereby laying the groundworks for Poland’s backsliding in media freedom. Over the last 7 years, KRRiT has arbitrarily penalized private media critical of government with large fines for alleged violations of the Broadcasting Act and threatened them with not renewing their broadcast licenses. It has also shielded state broadcasters, which were turned into government propaganda machines, from accountability for hateful, manipulative or plainly false content. This remains in stark contrast with the pre-2016 independent KRRiT which found that the state broadcaster one-sidedness violated the Broadcasting Act. Finally, it has failed to exercise effective oversight over public television, allowing its leadership to infringe upon the law through the content they present. Thus, it has dismissed complaints from the commissioner for human rights or citizens about the hateful or biased content in the state media, especially in news programs. Current KRiTT members are also likely to have violated Article 214.2 of the Constitution which mandates, inter alia, that they cannot engage in public activities incompatible with the dignity of their office. While the latter criterion allows for a wide spectrum of meanings and applications, some actions of current members can be reasonably construed as having violated it. For example, KRRiT chairman Maciej Świrski engaged in a systematic attack on private broadcasters, including TVN and radio stations TOK FM and Radio Zet, arbitrarily imposing significant fines for their programming in the run up to the parliamentary election in 2023.

Restoring the National Broadcasting Council’s Independence

To restore KRRiT as an independent and effective media regulator, the body’s composition should be changed. Comprised of five members appointed for a 6 year term, its current members were appointed in 2022 by the Senate, the Sejm and the President. Currently, KRRiT members may only be removed before the end of their term by the body that appointed them, inter alia, following a conviction for a deliberate criminal offense or making a false lustration statement, and for violating the provisions of the law as determined by a decision of the State Tribunal (Article 7.6 of the Broadcasting Act). The latter is a constitutional judicial authority responsible for enforcing accountability among the highest government bodies and officials for violations of the Constitution or laws, in connection with their positions or during the course of their official duties. Pursuing cases before the State Tribunal is permissible within a period of ten years from the commission of the act, unless the act constitutes a criminal or fiscal offense. The new Sejm will select members of the State Tribunal for the new term.

Because the President can veto any amendment to the Broadcasting Act which could change the rules for removing KRRiT members, the new governing majority may want to bring KRRiT members before the State Tribunal instead. This avenue for accountability has rarely been used thus far, not least because the initiation of proceedings against the President or members of the Council of Ministers require resolutions to be adopted by qualified supermajorities in the Sejm, with the presence of at least half of the statutory number of MPs. However, to bring a member of the KRRiT before the State Tribunal, only an absolute majority is required. The KKRiT’s constitutional role is to safeguard freedom of speech, the right to information, and the public interest in radio and television (Article 213.1 of the Constitution).

Once the State Tribunal finds that a KRRiT member has committed a constitutional tort can they be dismissed by the body which appointed them. This would grant the parliamentary majority in the Sejm theoretically an opportunity to remove two members of KRRiT.

Introducing New Safeguards

The new parliament should also amend the Broadcasting Act in order to bolster safeguards against the abuses witnessed during the PiS government’s tenure from 2015 to 2023.

One of these issues was the abuse of a politicized KRRiT to impose penalties on television and radio stations for their coverage of significant events of public interest, including protests and visits of foreign heads of state. Under the current legal framework, the KRRiT can initiate proceedings and impose penalties based on the provisions of the Broadcasting Act. However, it is not required to provide a comprehensive and transparent analysis of why a broadcaster’s actions meet the criteria to start such actions. In recent years, and especially in the months leading up to the parliamentary elections, this has led to an abuse of power by the KRRiT in targeting private broadcasters that criticize the government. The amended Broadcasting Act should require KRRiT not to take arbitrary, nontransparent decisions.

Moreover, it is essential to ensure that KRRiT cannot exert pressure on broadcasters by arbitrarily extending the issuance of licenses. For example, at the time when PiS targeted TVN with legislation on ownership, KRRiT also arbitrarily prolonged renewing licenses to its channels TVN24 and TVN7. The Committee of Ministers of the Council of Europe advises that the regulations governing the broadcasting licensing procedure should be clear and precise and should be applied in an open, transparent and impartial manner. The EMFA requires that any national measure affecting operations of media, including granting licenses, should be justified, proportionate, reasoned, transparent, objective and non-discriminatory. Moreover, the Broadcasting Act in Article 35a currently only imposes a time requirement for submitting applications for the renewal of a broadcasting license 12 months before the license’s expiration. An amendment to the Broadcasting Act should also introduce time limitations for KRRiT to make decisions, for example three months before the license expires. This idea has been supported by parties that will form part of the new government.

Abolish the National Media Council

In 2016, PiS created the National Media Council (RMN), in addition to the already existent constitutional media regulator (KRRiT). The RMN consists of 3 members appointed by the Sejm and 2 by the President. RMN supervises state media, despite this being KRRiT’s task. The Constitution does not explicitly prohibit the establishment of such a body, but it is entirely unnecessary as they have the same function. Neither have been functionally independent from the government. The RMN took an active role in facilitating the backsliding of media freedom in Poland. In violation of the Constitution and the (at the time still independent) Constitutional Tribunal judgment from December 2016, the RMN, instead of KRRiT, was put in charge of public service media management. The RMN under PIS dismissed and appointed the head of the state television without informing the public of the circumstances and reasons for such decisions.

Ahead of the general election Reporters without Borders rightly called on the future authorities in Poland to abolish the RMN and implement the Constitutional Tribunal’s judgment. In its stead, a sufficiently independent KRRiT should be put back in charge of public service media management. In 2020, the Senate, dominated by then-opposition, presented a draft bill to dissolve the RMN. The Sejm for more than two years has not assigned the draft bill a number, and has not proceeded with the project. However, the abolition of RMN would require President Duda not to veto a law dissolving it. An alternative would be to nullify the Sejm resolutions appointing the three RMN members. In their place, the Sejm could elect new members.

Public Service Media Independence

According to the OSCE/ODiHR’s election observation mission, Poland’s governing party enjoyed a clear advantage through its undue influence over, amongst other things, the public media. Partiality of the public broadcaster in favor of the governing majority and against opposition parties is a violation of the Broadcasting Act that requires the programmes of the public service media to be “pluralistic, impartial and well-balanced” (Article 21.1 ). Yet, to return captured state media into proper public service media is legally difficult. An option could be to remove the current public media managers, who are PiS loyalists appointed by RMN. However, this cannot occur through the RMN, as this would constitute a violation of a ruling by the independent Constitutional Tribunal from 2016, thus undermining the rule of law. Instead, it would have to occur following a restoration of an independent KRRiT. Others have suggested that the Culture Minister should put the public media companies into liquidation and appoint provisional administrations to oversee them. However, commercial law experts explain that the Broadcasting Act (Article 26) mandates that the public broadcaster’s legal form is “Telewizja Polska – Joint Stock Company”. A resolution to dissolve this company can be challenged in court by board members and supervisory board members of the public broadcaster.

It is, however, encouraging that following the elections, there has already been a change in the tone of public television, which is no longer attacking parties other than PiS as aggressively as before.

Unwind State Capture of Private Media

Drawing inspiration from the process that took place in Hungary under the rule of Fidesz, PiS also engaged in the capture of private media. In 2021, the government-controlled company, PKN Orlen, the largest oil and gas company in Central and Eastern Europe, acquired the Polska Presse group, which includes, among other assets, 20 out of 24 regional newspapers. After the takeover, the editor-in-chief was changed in 19 of them. In the supervisory board of Polska Presse, a journalist known for her sympathies towards PiS was appointed.

Changing Polska Presse’s board and editors in chief is indicative of PiS’s widespread practice of appointing party loyalists to the boards of state-owned enterprises and other lucrative positions. To redress this issue, the centrist party, Poland 2050, demands the creation of a registry of individuals who serve both in state-owned enterprises and public positions and the introduction of a cooling-off period for transitioning from political to corporate roles. This idea would certainly increase transparency. The Civic Coalition (KO), led by Donald Tusk, promised new transparent and merit-based appointments to the state controlled companies’ boards. The Left proposed the creation of a Competency Council, which would appoint the boards of state-owned companies. Whichever way is chosen, depoliticizing the management of these companies is essential to ensure that media groups owned by government-controlled entities engage in fair market competition and maintain editorial independence, a key demand advocated by EMFA in Article 5.

For years, Association of Local Newspapers, Chamber of Press Publishers, the Commissioner for Human Rights, Helsinki Foundation for Human Rights have also raised concerns over local governments owning private media outlets, arguing it violates local government neutrality and distorts media market. To remedy this problem, the Press Act of 1984 should be amended to prohibit local government to publish media.

Re-Imagining Media Regulation in Poland

Poland’s new administration must create conditions in which the private media market can develop in accordance with the principles of pluralism and the EU internal market. They should refrain from creating regulations that target specific media outlets or media groups, for example, under the pretext of restricting majority ownership by companies from outside the European Economic Area in Polish media in the vein of the bill targeting TVN station, which was eventually vetoed by President Duda.

The authorities should also ensure the effectiveness of the State Labor Inspection and guarantee the protection of workers’ rights in the media industry, including combating the use of precarious employment contracts instead of regular employment agreements. Unjustified lawsuits (SLAPP) aimed at intimidating and silencing media owners, journalists, or individual commentators must cease, and the temptation of using spyware against journalists must be categorically resisted. Nor should public authorities continue to engage in slanderous campaigns against journalists.

All of these were methods the ruling PiS authorities have employed in recent years in Poland to the detriment of media freedom. Poland’s new government must resist the temptation to continue using them for their own advantage. Moreover, when crafting legislation, the new administration should consider the opinions of civil society partners, including transnational media associations and local media organizations like the newly formed Rada Polskich Mediów (Polish Media Council), as well as media professionals’ trade unions. Naturally, the authorities should al