We, journalists, publishers, representatives of non-governmental organizations, activist groups, and the academic and scientific community, emphasize that to effectively address the problem of SLAPPs, a thorough revision of Polish law and the adoption of ambitious solutions that go beyond the minimum guidelines of the Directive are needed.
SLAPPs, strategic legal actions aimed at suppressing public debate, are cases initiated in order to oppress a person or organization speaking on publicly important issues. The initiator of a SLAPP usually has significantly more economic or political power than the person sued or accused.
We appreciate the public statements of the Minister of Justice, Adam Bodnar, about the threat SLAPPs constitute for freedom of speech. Given the highest respect for EU requirements on the part of the Ministry of Justice and the upcoming Polish Presidency of the EU Council, we legitimately hope that our country will decide to set an example as a pioneer of European anti-SLAPP legislation. In order to support legislative work on anti-SLAPP regulations, the Polish Anti-SLAPP Working Group, including the HFHR, together with ARTICLE 19 and the Watchdog Polska Civic Network, present a document Proposals for legal changes to implement the directive on the protection of persons who engage in public debate against manifestly baseless or abusive judicial proceedings (“strategic actions aimed at suppressing public debate”, so-called SLAPP).
The proposal for changes was formulated based on an in-depth analysis of the Anti-SLAPP Directive, Polish law, international standards of freedom of speech, and group interviews with defense lawyers, attorneys, judges and prosecutors.
We, the undersigned, propose the following directions for anti-SLAPP legal changes in Poland:
1. SLAPP PROTECTION WARRANTIES SHALL NOT BE LIMITED TO CIVIL PROCEEDINGS, IN PARTICULAR IT IS NECESSARY TO CONSIDER CRIMINAL LAW
2. INTRODUCTION OF AN APPROPRIATELY EXTENSIVE CATALOG OF PREMISES INDICATING THAT THE AIM OF THE PROCEEDINGS IS TO SUPPRESS THE PUBLIC DEBATE
This catalog should include the most common types of actual abusive practices used by people initiating SLAPP proceedings. Therefore, the catalog of premises from the directive should be expanded to include additional elements, taking into account indicators present in other acts of international law or the legislation of other countries. Of particular importance in this respect are the Recommendations of the Council of Europe, which propose a ten-point catalog of premises indicating that a given conduct has the characteristics of SLAPP.
3. COVERING NATIONAL MATTERS BY ANTI-SLAPP LAW
As the scope of the Directive is limited to cases with a cross-border element, Polish anti-SLAPP legal changes must also cover cases without such an element. We conclude that for the law to function in accordance with its purpose, which in this case is to combat SLAPP cases, it is necessary at the national level to extend protection to all such cases.
4. THE NEED FOR THE APPLICATION OF BROADER REASONS IN THE CONTEXT OF THE EARLY DISMISSAL OF CASES MECHANISM
The institution of early dismissal of SLAPP proceedings is a key means of protection against such cases. The Directive imposes an obligation to provide a mechanism for the early dismissal of a claim aimed at suppressing public debate due to its “manifest groundlessness” – but each state may introduce provisions establishing more effective procedural guarantees. In Poland, this will be necessary because the current national judicial practice shows that limiting this institution only to “obviously unfounded” cases would deprive this protection measure of real effectiveness. Courts in Poland adopt a very restrictive interpretation of similar concepts.
5. IMPLEMENTATION OF ALL REMEDIES PROVIDED FOR IN THE DIRECTIVE
The court must be able to order different types of remedies if it finds that the conduct is SLAPP. The law should provide for the possibility of imposing sanctions on the person initiating SLAPP, the possibility of ordering compensation from such a person, the possibility of obliging a given person to fully reimburse the costs of the proceedings and the possibility of ordering a given person to publish a court decision (making the judgment public). Only a sufficiently wide range of possible measures will allow the response to be adapted to the circumstances of a given case.
6. EXCLUSION OF ACTIVE LICENSE OF THE STATE TREASURY AND LOCAL GOVERNMENT ENTITIES IN CASES FOR THE PROTECTION OF GOOD REPUTATION
A mechanism for the protection of freedom of speech should be introduced resulting from the standard presented in the judgment of the European Court of Human Rights OOO Memo v. Russia of March 15, 2022 (case 2840/10).
7. DECRIMINALIZATION OF DEFAM AND INSULT
The most important direction of changes in criminal law is the abolition of the provisions constituting the basis for initiating the most burdensome SLAPPs, and thus the repeal of Art. 212 and 216 of the Penal Code. The repeal of these provisions should be accompanied by an appropriate reform of civil procedure.
8. WIDER CHANGES IN THE FRAMEWORK OF SUBSTANTIVE CRIMINAL LAW
It is also necessary to consider changing or repealing provisions such as Art. 133 (public insulting the Polish nation or the Republic of Poland), art. 135 § 2 (insulting the President of the Republic of Poland), art. 137 (insulting or damaging flags, emblems and other signs), art. 226 (insulting a public official or a constitutional body of the Republic of Poland), Art. 261 (insulting a monument) and art. 196 (insulting religious feelings) of the Penal Code.
9. INTRODUCING CHANGES IN THE FRAMEWORK OF CRIMINAL PROCEDURE LAW
In the field of criminal procedural law, a number of amendments should be made that would allow for the provision of protection mechanisms corresponding to the mechanisms that the EU directive, after adequate implementation, will introduce into civil law.
As representatives of various circles that care about open and transparent public debate, we emphasize that SLAPPs can affect anyone, constituting a serious threat to democracy. That is why we are joining forces and calling for the introduction of broad legal changes that will effectively protect civil society.
The quick introduction of effective anti-SLAPP changes to Polish law is not only possible, but also necessary. SLAPPs attack not only the media and individuals, but also democracy.
APPEAL SIGNED BY:
- ARTICLE 19
- Atlas of Hate
- Blue Dragon Institute
- Autonomia Foundation
- Basta Foundation
- ClientEarth Foundation
- “Home Where You” Foundation
- Frank Bold Foundation
- We Are Important Foundation
- Forests and Citizens Foundation
- Media Forum Foundation
- Lubartów Civic City Foundation
- Power of Partnership Foundation
- Let them live Foundation
- Reporters Foundation
- Stocznia Foundation
- Towards Dialogue Foundation
- Freedom Foundation
- Freedom from Religion Foundation
- Cultural Exchange Foundation toTU toTAM
- Green REV Institute and European Fem Institute
- Helsinki Foundation for Human Rights
- “Our Ombudsman” initiative
- Chamber of Press Publishers
- Campaign Against Homophobia
- Shield Club
- NOMADA – Association for the Integration of Multicultural Society
- OKO.press
- Open Republic – Association against Anti-Semitism and Xenophobia
- Press Club Poland
- Polish Media Council
- Watchdog Polska Citizens Network
- “We’re Together” Association in Kalisz Pomorski
- Amnesty International Association
- Association of Local Newspapers
- Association named after Stanisław Brzozowski / Krytyka Polityczna
- Klon/Jawor Association
- Lambda Association Warsaw
- Local Media Association
- The City Is Ours Association
- Association of Digital Transformation Practitioners
- Journalism Society
- Earth Society
