Polish Freedom of Speech on Social Media Platforms
Friday February 12, 2021
On February 1, 2021, a new draft law on freedom of expression on social media platforms appeared on the website of the Polish Ministry of Justice.
Work on the bill, originally announced by the ministry in December last year, picked up speed in mid-January when Twitter and Facebook blocked Donald Trump’s accounts in what the Polish government viewed as censorship.
The Justice Minister said that freedom of expression and debate is the cornerstone of democracy and that censorship declarations, especially online where most of the political debates and ideological disputes take place these days, violate those freedoms. Therefore, Poland should have rules to prevent abuse by internet tycoons, increasingly restricting this freedom under the auspices of protection.
The new law aims to protect constitutional freedom of expression as well as individual personal interests that anonymous internet users can violate.
The bill provides for the appointment of the so-called Freedom of Speech Council, which is supposed to guarantee the constitutional freedom of expression on social network websites. The council would consist of legal and new media experts and would be appointed by the lower chamber of the Polish parliament – the Sejm – for a six-year term with a qualified (3/5) majority (the Senate, historically involved) in similar processes would not participate in the appointment).
The bill also provides that the user can file a complaint with the service provider if a website blocks an account or deletes a specific entry, even though its content does not violate Polish law. The provider must confirm that the complaint has been received and then have 48 hours to review it. If the provider rejects the complaint, the user can appeal this decision to the Freedom of Speech Council, which will investigate the complaint within seven days. The procedure before the Council would be electronic to speed up the process and to minimize costs. The council will continue in closed sessions. No evidence from witnesses, parties, expert opinions and visual examinations will be used, and the evidence procedure before the council will be limited to evidence from the parties (the user and the provider, represented by his representative in the country) or information already known to the council.
If the Council deems the complaint to be justified, it can request the website to immediately restore the blocked content or account. Thereafter, the provider has no more than 24 hours after receipt of the order to meet the requirements. Failure to comply with the Council’s order can result in a fine of up to PLN 50,000,000 (i.e. € 11,000,000). Such heavy fines can prevent administrators of social network services from removing content, even if it is clearly harmful, for fear of disputes over the legality of such content.
In addition, the provider cannot restrict access to content that has already been examined by the Council, even if circumstances should later change and the entry ultimately turns out to be illegal. The decision of the council is final and the new body can limit its reasoning solely to stating the facts which it deemed obvious and the legal provisions that formed the legal basis for the decision made, in fact the provider of the law deprived of appeal to the administrative court.
The draft law also introduces the so-called “John Doe lawsuit”. A person whose personal interest has been violated by an anonymous internet user can file a lawsuit without providing the infringer’s personal information. Currently, the applicant must provide the name and address of the alleged infringer in order to successfully take legal action in a civil court (e.g., a personal interest violation lawsuit). Obviously, this is very difficult, if not impossible, to do with online defamation. The bill stipulates that in order to successfully take action in civil court, the applicant only needs to provide the URL address where the defamatory statements were published, the time and date of online publication, and the name of the website on which it is published was posted and the accused’s login. Until now, people whose personal interests have been violated online have had to report their defamation cases to the police as criminal offenses just to establish the identity of the infringer. This was highly ineffective and prevented applicants from asserting their rights in civil courts.
Once the bill is passed, it will have a dramatic impact on the online media in Poland. The disproportionately high financial penalties for blocking online content (up to € 11,000,000) most likely lead administrators of social network services to play it safe before blocking content (even if it is harmful and illegal). Paradoxically, the frequency of harmful and illegal content online is likely to increase rather than decrease.
It remains to be seen whether the draft will actually be continued or adopted later, especially given the fact that freedom of expression is currently regulated at EU level.
The recently announced proposal by the European Commission on the Digital Services Act (DSA) already deals with online freedom of expression. In particular, it provides that it will be impossible to block a user’s account without informing them of such a decision and giving reasons, and without giving them the opportunity to appeal such a decision through various online procedures. The approved DSA will be directly applicable in all Member States including Poland. The continuation of the ministerial draft, which duplicates many of the DSA provisions, appears counterproductive and unnecessary.
As of the date of this post, the bill has not yet been published on the State Legislative Center website.
As a reminder, two years ago the Polish Ministry of Digital Affairs and Facebook signed an agreement on the complaint procedure against content blocked on the website. The parties have taken steps to set up a contact point dedicated to submitting notifications from users whose content, accounts or profiles have been blocked / removed for additional verification. See Można będzie odwołać się od decyzji Facebooka po zablokowaniu konta | CHIP.
The draft law, allegedly submitted to the Prime Minister’s Office on January 22, 2021, for inclusion on the Registry of Legislative Work of the Chancellery, is available on the Ministry of Justice’s website.
At the same time, the Polish government is working on another law that provides a solution aimed at exercising control over online content and allowing the government to intervene in the removal of such content or block access to such websites.
First, the proposed amendment to the Law on the National Cyber Security System aims to strengthen Polish cybersecurity by, among other things, excluding certain devices and blocking access to certain IP addresses.
The proposed legislation would empower the Minister for IT Implementation to issue a so-called “security order”. In the event of a so-called “critical incident” (ie an incident that causes significant damage to public safety or order, international interests, economic interests, activities of public institutions, civil rights and freedoms, or human life and health) which would be the Minister able to oblige certain bodies within the national cybersecurity system and telecommunications operators to take certain measures. These actions can include introducing a network traffic rule to prohibit connections to specific IP addresses or URL names. This means that certain websites or addresses in Poland may no longer be available. This seems like a typical measure taken to combat cybersecurity threats, but there are two provisions that have sparked heated debate. First, the minister can issue the security order for a period of up to two years. Second, such a security order is immediately enforceable regardless of any objections to the decision. The addressee of the decision can appeal to an administrative court. However, given the time required to complete the judicial process, the potential court relief can come very late. Finally, many commentators argue that denying access to certain parts of the Internet can be excessive and disproportionate to what the Cybersecurity Act aims to achieve. Previously, telecom operators were required to block access to websites used for unauthorized gambling and now the minister is given an additional tool to block access to other websites or URL addresses if such a ban is assessed by the minister can help counteract critical cybersecurity incidents.
The last law currently regulated is an amendment to the Law on Competition and Consumer Protection. The aim is to include the cooperation between the national authorities responsible for the enforcement of consumer protection laws and the repeal of the Regulation (EC) in the Polish Legal Framework Regulation (EU) 2017/2394 of the European Parliament and of the Council of December 12, 2017 . No. 2006/2004, ie the so-called CPC Regulation (CPC), which provides for expanded powers of the consumer protection authorities in relation to the investigation and enforcement of the provisions on violations of such laws. Some of the responsibilities under the CPC are assigned to the President of the Office of Competition and Consumer Protection (UOKiK), who acts individually, while the remaining actions are taken in collaboration with other authorities.
Under its new competencies, UOKiK can now block the websites of entrepreneurs without first initiating any proceedings. If UOKiK has concerns about competition and consumer protection, it can ask a business owner to warn consumers when they visit their website, to delete certain content or to restrict access to it or even to remove the internet domain entirely. If an entrepreneur refuses, UOKiK can oblige him to take certain measures through an administrative decision. While such a decision can be challenged in court, a business owner may not operate their website until a decision has been made. This new law is expected to come into force in the first quarter of 2021.
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