Journalists, publishers and civil society organisations have been calling for the complete decriminalisation of defamation for many years. We have repeatedly emphasised that criminal law is not a proportionate means of protecting reputation. The existence of defamation as a criminal offence has a chilling effect, undermining media freedom and freedom of expression, to the detriment of us all as a democratic society.
Plans in Poland to retain criminal liability for defamation, announced by the experts’ group working under the Codification Commission for Criminal Law, fall short of our expectations.
Although the proposed mitigation and narrowing of the scope of the defamation offence represent a promising step in the right direction, they do not eliminate the chilling effect associated with Article 212 of the Criminal Code. In practice, the introduction of these changes would mean that journalists, publishers, and other participants in public debate would still face the risk of criminal proceedings for defamation. The proposed legal framework would not adequately address the significant uncertainty surrounding court verdicts in such cases. Consequently, those wishing to silence criticism and suppress discussion on topics unfavourable to them would still have a convenient tool at their disposal, allowing them to entangle participants in public debate in lengthy and burdensome legal proceedings with unpredictable outcomes. In other words, Article 212 of the Criminal Code would remain a persistent instrument for initiating SLAPP cases – strategic lawsuits against public participation – designed to stifle public debate.
The removal of imprisonment as a penalty is undoubtedly a positive development, but it is far from sufficient. In practice, the most oppressive element of defamation proceedings is the necessity to appear in court as a defendant and the risk of being convicted. Even the mildest penalty for defamation entails the status of a criminally convicted person, which precludes practising many professions and holding certain public roles. The proposed amendments will not change this situation.
As a member of the European Union, Poland has an obligation to introduce measures to counter SLAPPs. The Civil Law Codification Commission has recently proposed a draft law that, if adopted, could hinder the initiation of civil SLAPP proceedings. In this context, retaining defamation as a criminal offence would lead to a situation where those seeking to suppress public debate would resort to Article 212 of the Criminal Code even more frequently. A reform aimed at countering SLAPPs will only be effective if appropriate legal changes are implemented in both civil and criminal law.
For this reason, we once again call for the complete decriminalisation of defamation.
Signed:
ARTICLE 19
Helsinki Foundation for Human Rights
Chamber of Press Publishers
Polish Federation of Non-Governmental Organizations
Press Club Poland
Polish Media Council
Citizens Network Watchdog Poland
Association of Local Newspapers
Association of Local Media