When discussing the rule of law we often jump to consider concepts such as judicial independence, equality, fairness and constraints on executive power. What we often overlook is the importance of pluralism in our societies and the role pluralism plays in our democracies.
On 11 August 2021 in the Sejm, the Polish government debated the controversial foreign media ownership bill. The bill proposes to prohibit entities registered outside of the EEA from having controlling shares in media companies operating within Poland.(1) While this isn’t necessarily bad it is important to consider the passing of the bill within the wider context of current Poland’s media landscape. In today’s world the role of independent journalism is more important than ever and in light of the current rule of law crisis unfolding in Poland pluralism and the free media is needed more than ever.
Plurality means variety and differences. A pluralistic state is a state where a multitude of differing opinions, concerns and ideas can be expressed freely and openly. It would be incorrect to say pluralism represents total freedom of speech but rather it is a guarantee that at a minimum a diversity of expression is guaranteed as a fundamental land democratic ideal.
Within the context of the media plurality takes form through diversity of coverage, criticism and most importantly scrutiny. This is achieved through the diversity of ownership – different platforms independent from the state and owned by different individuals all covering different aspects of politics, economics and civic life. Media pluralism and a free media play a key role in the rule of law and provide a level of scrutiny over state power and serves as a key mechanism in combating corruption wherever it might arise.(2)
In Poland, media pluralism is guaranteed on both a constitutional level and through secondary legislation. Under Article 54 of the Polish Constitution the National Broadcasting Council (“KRRiT”) is provided for and tasked with protecting the independence of the national media, safeguarding freedom of speech and the right to information.(3) Independent media and journalist’s protection are further guaranteed under the 1992 Broadcasting Act.(4) Appointments to KRRiT are made by the legislative and the executive subject to a number of apolitical requirements and guarantees.
At a glance, it would seem that Poland has quite a robust legislative framework protecting media pluralism and given the role media played in the historic Solidarity movement it is understandable why a democratic Poland would prioritize the establishing of protective framework for the media.(5) In recent years PiS has introduced a number of concerning reforms in the area of media independence which has eroded pluralism and the rule of law in Poland.
The first act of erosion occurred in 2016 when KRRiT was subjected to a reform which removed some of its competencies and assigned them to the newly established National Media Council (“RMN”).(6) The RMN is currently tasked with managing the state media platforms Polish Television (TVP), Polish Radio and Polish Press Agency. The RMN sits as a panel of 5 members with 3 being appointed directly by the Sejm and 2 being appointed directly by the President. In 2016, the Polish Constitutional Court ruled that the exclusion of KRRiT from the appointing functions of the RMN was unconstitutional however as of 2021 this decision remains unimplemented and largely ignored by the ruling party.(7)
The changes to Poland's media protective framework has resulted in a number of alarming developments. During the electoral campaigns of both the national parliament and the European parliament no electoral monitoring was carried out.(8) Similarly, during the 2020 Presidential campaign KRRiT did not ensure independent monitoring of the campaigns.(9) During the 2020 presidential campaign TVP exclusively supported the campaign of presidential candidate Andrzej Duda demonstrating a clear lack of pluralism and fair coverage during the campaign. (10)
In an article published on 6 August 2020, TVP made direct comparisons between Duda and the late Lech Kaczyński, twin brother of the current de facto leader of Poland Jarosław Kaczyński and a figure who is deified by PiS.(11) In another article published on 1 August 2020, TVP published an article with the caption ”Will they turn their backs on millions of Poles? The opposition wants to disregard the president”.(12) To correspond with this title TVP used an image which was a composite of key political figures in Poland who have been critical of PiS’s political activities such as Lech Wałęsa, the leader of Solidarity during the 1980’s and the first democratically elected President in Poland, Donald Tusk, a prominent opposition politician in Poland and former Prime Minister of Poland, and a number of other key opposition politicians in Poland.(13) The intent behind this article, the title and the image is clear – to dismember pluralism and to ensure the opposition will have a difficult task in gaining popularity amongst voters.(14)
The saving grace in Poland’s public discourse has been the independent media and the work of countless journalists who have worked tirelessly to ensure fair and equal coverage of events in Poland. The attack on independent media in Poland was well underway long before the foreign media ownership bill was presented to the Sejm in July 2021. In February 2020, TVN24 submitted its application for license renewal. TVN24 is an independent media outlet owned by Discovery which has been in operation for 20 years and has been critical of PiS. As of today, this license application remains pending and per the 1992 Broadcasting Act a final decision can be delivered no later than September 2021.(15)
The controversial acquisition of Polska Press by state-controlled oil company PKN Orlen announced on December 2020 has also raised concerns regarding the state of media pluralism in Poland.(16) The Polish Competition Authority (” UOKiK ”) approved the transaction however the Polish Ombudsman challenged the acquisition on the grounds that the transactions represents a threat to media freedom.(17) The Court of Competition and Consumer Protection granted interim relief and suspended the decision of UOKiK for a period of 3 months pending the examination of the Ombudsman's appeal.
On 13 April 2021, UOKiK publicly criticized the decision of the Court alleging that the decision was ”illegal”.(18) PKN Orlen indicated on 14 April 2021 that in their view the acquisition was concluded and accordingly PKN Orlen has already implemented extensive changes to the Polska Press editorial and management teams.(19) (20) On April 30 2021, the Regional Court of Warsaw suspended the forced acquisition and refused to register the new appointees to the National Court Register.(21) The future of Polska Press is now uncertain and subject to the final decision of the Court of Competition and Consumer Protection.
If the foreign media ownership bill is passed this will dramatically alter media freedom and reduce the already alarmingly low levels of media pluralism in Poland. The operation of independent media in Poland is becoming increasingly difficult with state advertising being directed to pro-government platforms.(22) The few platforms capable of securing sufficient independent funding are facing political attacks that are increasing in severity and pushing Poland closer and closer to a state with one narrative and one voice and a state where the media can no longer effectively scrutinize the government and hold the government accountable for their actions. A restriction on media pluralism and the independence of journalists is a restriction on the voice democracy.
So, is the media free in Poland? It is for now, but just barely. It is becoming increasingly difficult for those trying to cover life in Poland to do so freely and if the proposed bill is passed this would be a proverbial nail in the coffin for free media.
Footnotes:
1. Draft law No. 1389 amending the law on the radio and television broadcasting, submitted to the Sejm on 7 July 2021
2. Brussels, 30.9.2020 COM(2020) 580 final, European Commission, 2020 Rule of Law Report, pg 17
3. Article 54 of the Constitution
4. The Law of 29 December 1992 on the Broadcasting
5. See Europejskie Centrum Solidarności, Your Solidarity – Our Liberty: Reactions of émigré Poles and the world to the imposition of martial law in Poland on December 13th, 1981, Lublin IPN (2017)
6. Sejm’s official communique of 7 July 2016
7. Judgment of the Constitutional Tribunal of 13 December 2016 in case K 13/16 and Ombudsman’s communique of 3 February 2020
8. Brussels, 30.9.2020 COM(2020) 580 final, European Commission, 2020 Rule of Law Report, pg 14
9. Statement of preliminary findings and conclusions of the ODIHR Special Election Assessment Mission
10. See examples: https://panorama.tvp.pl/49264970/prezydent-wspiera-rolnikow and https://www.tvp.info/49259370/jacek-sasin-o-podwazaniu-zwyciestwa-andrzeja-dudy-w-wyborach-wieszwiecej For more reading see https://www.article19.org/resources/poland-telewizja-polska/
11. https://www.tvp.info/49300032/prezydent-andrzej-duda-wyglosil-oredzie-mamy-komentarze-politologow
12. https://www.tvp.info/49224808/zaprzysiezenie-andrzeja-dudy-jak-zachowa-sie-platforma-obywatelska
13. https://www.tvp.info/49224808/zaprzysiezenie-andrzeja-dudy-jak-zachowa-sie-platforma-obywatelska
14. See OSCE-ODIHR Final Report on the Presidential Election held in Poland on 28 June and 12 July 2020 (Special Election Assessment Mission) as well as the 2020 Rule of Law Report: country chapter for Poland.
15. Brussels, 20.7.2021 SWD(2021) 722 final, European Commission, 2021 Rule of Law Report, pg 21
17. See press communique of the Ombudsperson of 13 April 2021
19. EURACTIV.com, Poland’s PKN Orlen says media takeover unchanged by court decisions’ of 14 April 2021.
20. Gazeta Wyborcza ‘Czystka w Polska Press’ of 30 April 2021
22. 2021 Media Pluralism Monitor, country report for Poland, p. 14 and Politico ‘Polish media suspend reporting to protest planned tax on advertising’ 10 February 2021.
23. https://wiadomosci.onet.pl/kraj/lex-tvn-sejm-przyjal-nowelizacje-ustawy-o-radiofonii-i- telewizji-relacja/8gk12qe