Warsaw, 22nd December 2023
How Polish Television, Polish Radio and the Polish Press Agency have operated up to now blatantly contradicts what public media should be in a democratic state ruled by law. Public television and radio broadcasters have violated their legal obligation to provide content characterised by pluralism, impartiality, balance and independence. These media have become a propaganda tool for the ruling camp, which has been confirmed in the context of the elections by the OSCE Office for Democratic Institutions and Human Rights Monitoring Missions, among others. Public television has also repeatedly broadcast material inciting hostility towards certain social groups, including hate speech of a xenophobic and homophobic nature. Those journalists employed by these media outlets who fulfil their professional duties with integrity have also been repeatedly harassed.
There is therefore no doubt that the public media needs to be urgently and thoroughly reformed.
We are aware that the political and legal conditions make such reforms very difficult.
However, we cannot but note that the way in which the changes in the public media have begun raises serious legal doubts.
According to a communiqué from the Minister of Culture and National Heritage, the changes in the composition of the public media authorities were made based on the provisions of the Commercial Companies Code. However, we note that the Broadcasting Act and the Polish Press Agency Act currently regulate the appointment and dismissal of members of public media bodies. The provisions regulating the respective powers of the National Media Council have not been directly reviewed by the Polish Constitutional Court, nor have they been scrutinised by national courts, the European Court of Human Rights or the Court of Justice of the European Union for their compatibility with international law or the Constitution. From the Constitutional Court’s judgment of 13 December 2016 (case number K 13/16), it can be concluded that the legal framework of the powers of the National Media Council is also incompatible with the Constitution, as it completely removes the National Broadcasting Council's influence on the composition of the bodies that manage the activities of the public broadcasters. In the grounds of the judgment, the Constitutional Court states with regard to the National Media Council that “the creation of a new public authority and the transfer of certain powers in the field of radio and television does not remove the legislator’s obligation to introduce instruments that enable the National Broadcasting Council to fulfil its constitutionally defined tasks”. However, the Constitutional Court ruled on the legal changes resulting from the Act of 30 December 2015 amending the Broadcasting Act, which transferred the powers to appoint the members of the public media bodies to the minister responsible for the State Treasury but preceded the establishment of the National Media Council.
Furthermore, the position that it is up to a government member (a minister who exercises the ownership rights of the State Treasury) to decide on the staffing of the public media bodies also raises serious doubts in light of constitutional standards. In its resolution of 13 December 1995 (case number W 6/95), the Constitutional Court stated that a key element of the principle of independence of public service broadcasting is the “independence of the public service media from governmental bodies”. For this reason, the Court held that “a conclusion allowing the application of the Commercial Code and granting the general meetings of the public broadcasters the power to dismiss the members of the supervisory boards prematurely would also be incompatible with a systemic interpretation resulting from the general model of public broadcasting”. The Court also stated that “the establishment of public service broadcasting organisations in the form of joint-stock companies must not, however, conceal their specific nature. The aforementioned axiological context, which results from the direct link between public service broadcasting and the realisation of freedom of expression and the right to information, does not allow public service broadcasters to be treated in the same way as other undertakings governed by commercial law, even if the legal form of their organisation is based on the same model”.
The argument that a representative of the government has the power to dismiss and appoint members of the bodies that manage the activities of public service broadcasters also raises doubts in the light of the Council of Europe standards. According to Recommendation No. R (96) 10 of the Committee of Ministers to member states on the guarantee of the independence of public service broadcasting, the rules for the appointment of members of these bodies must be sufficiently transparent and defined in such a way which avoids placing the bodies at risk of political or other interference. In 2016, Council of Europe Commissioner for Human Rights Nils Muižnieks noted that “Placing public service media under direct government control by giving the latter the powers to appoint and dismiss the members of the supervisory and management boards of public service television and radio contradicts Council of Europe standards which notably require that public service media remain independent of political or economic interference”[1].
For these reasons, it is necessary to begin work immediately on the introduction of a framework for constitutional legal order in the area of public service media.
On behalf of the Helsinki Foundation for Human Rights,
Maciej Nowicki
President of the Board
[1] https://www.coe.int/es/web/commissioner/-/poland-slow-down-and-consult-on-legislation-to-avoid-human-rights-backsliding
