Biuletyn Informacji Publicznej RPO

Commissioner for Human Rights lodged on 24 March appeal to the Constitutional Tribunal against Media Law of 30 December 2015. In the opinion of the Commissioner for Human Rights the Act violates constitutional guarantees of freedom of speech and media freedom by subordinating the public service broadcasting directly to the government and restricts the constitutional role of National Broadcasting Council.

The Commissioner lodges its appeal after analyses carried out by Office of the Commissioner for Human Rights and in connection with the letter of National Broadcasting Council (which cannot lodge appeals to the Constitutional Tribunal on its own), in the spirit of authorities’ cooperation mentioned in the Preamble to the Constitution.

- Freedom of speech and related media freedom are constitutional principles – argues Commissioner for Human Rights. Public media should constitute an institutional guarantee of freedom of speech and pluralism of means of social communication. In order to fulfil this function, they must, however, be characterized with independence from both political and economic interests.

Constitutional Tribunal have already stated that preservation of internal pluralism of programs is possible only when maintaining palpable distance from the current political holder (Constitutional Tribunal resolution of 13 December 1995, file no. W 6/95).

Freedom of speech guarantee

As the Commissioner for Human Rights recalls, public service broadcasting was created in Poland as a result of governmental transformation of radio and television (Act of 29 December 1992). Earlier, during People's Republic of Poland period, public radio and television services were government agencies and they were politically and organizationally subordinated to the Council of Ministers.

In order to separate public media from the authorities, the Act on radio and television of year 1992 introduced three levels of making decisions on public radio and television: (1) the National Broadcasting Council and as part of companies of public radio and television services – (2) supervisory boards and (3) boards of these companies. They constituted, in a way, "buffers" between political authorities and editorial boards.

Meanwhile, Act of 30 December 2015 –­ an a appeal was lodged to replace this complicated procedure of appointing authorities of public service media with decision of government member – the Minister of the Treasury.

The role of National Broadcasting Council

The Act the appeal was lodged against ignores the National Broadcasting Council – body of state control and law protection, which, on the one hand, is a guardian of freedom of speech and media independence, and, on the other is responsible for the implementation of public service mission, which is related to "...radio and television public interest". The legislator ignored the fact that the National Broadcasting Council is based on Constitution in terms of participation of authorities in creation of media authorities. The Council was designed to be situated beyond the tripartition of power, "between the executive and the legislative power, with maintenance of palpable distance from the government" (Constitutional Tribunal decision of 23 March 2006, file no. IC 4/06).

When the government decides on the structure of media authorities...

By the virtue of the lodged against Act, government acquired a decisive and direct influence on the organization of public media and structure of their bodies. Thus, authorities of mass media companies operate under pressure to edit the content of programs so as to satisfy the government and avoid its dissatisfaction.

It may lead to avoiding or minimizing topics that present the authority in negative light.

Can a decision be made regarding an Act which shall cease to be valid in three months?

Commissioner for Human Rights submits its appeal during the period of validity of Act of 30 December 2015. It shall, however, lose its validity on 30 June 2016, thus at the time of issuing the decision by the Constitutional Tribunal it may no longer be valid.

However, in the opinion of the Commissioner for Human Rights, issuing a decision is possible even when the Act is no longer valid. Provisions of the lodged against Act refer, after all, to the rights and freedoms protected by the Constitution and effects of this Act shall persist even after the Act is no longer valid.

The legislator can neither freely suspend rights and freedoms, nor constitutional principles such as freedom of speech and media freedom constituting basis for principle of independence of public service media.

Neither permanent, nor temporary public service media dependency from the government can be introduced.

In the decision of 12 December 2005 on case file no. K 32/04 the Tribunal stated that "it is not sufficient for the applied measures to be in line with the intended objectives, facilitate their achievement or be convenient for authorities, which are to apply them in order to achieve these objectives. These measures should be worth the democratic state of rule of law".

However, at the same time, it should be remembered that these measures may be considered justified only to the extent they are aimed at protection of values of a democratic state of rule of law.