Poland: Worrying implications of defamation through the criminal code

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Fact-checking is crucial for any piece of journalism. This was what the investigative journalist Jaroslaw Jakimczyk set out to do when he wrote an email to the press office at IT and technology company Qumak S.A. requesting authentication of information he had.

The company, which is based in Warsaw, provides information and communication services to well-known clients, such as the major Polish bank Pekao. Jakimczyk’s questions pertained to discs of private client data that, according to his information, there was proof of a transaction of sale between the two parties. When Jakimczyk received a response from Qumak’s press office in late September, the denial of any wrongdoing on their part was followed swiftly by something rather unexpected: Qumak was now pressing charges against Jakimczyk for defamation under article 212 of the Polish penal code.

Under article 212 of the Polish penal code, defamation is when one person defames another individual, group, company or association, over such characteristics “that might lower it in the public opinion or contribute to the loss of trust which is required for the office executed by it”. Defamation can be subject to up to a year’s imprisonment if “done through means of mass communication” under paragraph 2; without mass communication, one might just get away with a fine or, rather vaguely “limitations to freedom”. Until amendments were made to the law in 2010, imprisonment was a general possibility. A public apology is usually also a popular demand with any article 212 claim.

Defamation charges appear to have been keeping Polish judges increasingly busy over the years: The Helsinki Foundation of Human Rights, in its publication on article 212, points out that while 43 article 212 claims were put forward in 2000, by 2011, this figure had risen to 232. At times, the entire Polish judicial system is exhausted. This happened to Andrzej Marek in 2004, who had accused a local politician of corruption in an article, and Marian Maciejewski, who had written articles critical of judicial inaccuracies in the city of Wroclaw.

In both instances, defamation charges were pressed, and both cases took years to reach the European Court of Human Rights to be ruled breaches of article 10 of the European Convention on Human Rights, which deals with free expression. The court ordered compensation payments for the journalists. Five more very similar cases were rejected by European Convention in the same way. But article 212 claims continue to dog journalists.

A part in the explanation for the increase of claims lies, for multiple reasons, with the internet. As Dorota Glowacka, an expert on 212 at the Helsinki Human Rights Foundation, told Index on Censorship, the fact that information is online might instill a heightened sense of urgency in potential claimants, as “the statements would be perceived as more harmful to their reputation, due to them remaining ‘online forever’”. Paradoxically, the accessibility of information through the web, according to Jakimczyk, might also work against them: “Many representatives of local oligarchies who read and analyse online publications on the subject have come to the somewhat correct conclusion that there are means to silence uncomfortable journalists.”

A review of cases of journalists charged with article 212 shows that local authorities are often involved. Earlier this month, the mayor of the small municipality in south-east Poland, Blachownia, decided to press charges against the editor-in-chief of a critical independent local news portal. As Jakimczyk noted, “previously, many of those based in Polish provinces had not heard of such a possibility or did not have enough courage to go ahead with them”, but the “amplification of cases charged with article 212 might have encouraged them to take up the same”.

In fact, council authorities sometimes press charges under 212 on behalf of a criticised local politician, arguing that such criticism “hits the good reputation of the whole council”, as Glowacka said. Such cases are rather comfortable arrangements for the politicians, as it involves no expenditures or extra efforts of their own: they can make use of the council’s legal services, and any costs relating to the case will be paid for.

Glowacka said that the cases reaching the attention of the Helsinki Human Rights Foundation have still largely been those of journalists and political activists. Increasingly, though, even the average citizen leaving a negative product or brand review, might get sued for defamation. And if comments are left anonymously, then article 212, as part of the criminal code, guarantees police support in subject identification; if one were to consider taking up the alternative route through the civilian code that also protects personal goods and good reputation, this possibility does not exist.

Attempts to strike the article from the criminal code have come from many angles over the years: between 2007 and 2012, the OSCE, the Council of Europe, as well as freedom of speech and human rights delegates of the UN openly criticised the article for curtailing freedom of speech. The diplomat Irina Lipowicz had challenged the possibility of imprisonment for defamation before the Polish Constitutional court three years ago, but that only pointed to its 2006-ruling, when it was decided article 212 did not infringe upon freedom of speech.

In 2011, the Polish citizen Mariusz S. filed a petition to remove 212 from the Polish criminal code, but the voting did not bring about a clear majority and the provision remained in place. The Helsinki Human Rights Foundation, in the run-up to the 2011 national parliamentary elections, promoted a large-scale campaign to ‘Erase article 212’. At the time, 140 Polish MPs declared they would support a move to drop the defamation clause.

It appears, though, that there is a lack of substantial, genuine political will, and that, too often, it presents itself as a handy “whip” or looming “sword of Damocles”, Glowacka and Jakimczyk said. The former points to an illustrative example of the Polish People’s Party [org.: Polskie Stronnictwo Ludowe], which officially backed the Erase initiative in 2011, only for its vice chair Eugeniusz Grzeszczak to put forward claims against journalists in his constituency a year later, when he disagreed with their revealing his payments to a favourable publisher. For Polish politicians to truly find interest in removing the provision, “an incident would be needed of accusations on article 212 pressed against a representative of this very class, which appears to consider itself as a club of untouchables”, Jakimczyck commented.

The journalist underscored another, deeper issue that the threat of defamation charges makes possible. The ties between business and media publishers are close to the extent that they lead to “the introduction of unwritten rules, limiting or excluding publication of critical material on certain companies, corporations or public institutions, which have a large advertising budget to their disposal.” It does not seem a coincidence that critical material has been increasingly held back, especially since the financial crisis in 2008, he said.

In Jakimczyck’s experience, this has pertained to any reports on firms which the state treasury has shares in, including major names such as the largest Polish insurance firm PZU, the copper and silver production company KGHM Polska Miedz, the Polish oil refiner and retailer Orlen, as well as the Polish Energy Group. Every time an article remained unpublished, “never did those responsible [at the paper in question] provide a satisfactory justification as to why publication was denied”. The incident with Qumak’s charges, tied budget-wise to the largest Polish bank, is no longer an isolated incident so much as “the further logical consequence of the new phenomenon that is preventive censorship”. Worryingly, these are not publicly accountable institutions but rather in the hand of “private capital that is not subject to societal checks and balances”.

Jakimczyk’s case, in the meantime, appears resolved: in a court ruling earlier this month, judges found that to qualify for defamation, the content in question has to have at least been shared with one other person; judges have also raised the crucial point that a journalist’s main role is to ask questions, i.e.: the journalist was just doing his job. Qumak S.A. will now have to cover any resulting fees for courts.

Although the company is legally entitled to claim revision, for the sake of the state of journalism in Poland, it is hoped that this case will remain at that, and set an ultimate example what worrying direction alleged defamation charges should stop going to in Poland.


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Has Ireland reintroduced criminal libel?


(Image: Quka/Shutterstock)

A recent court ruling in Ireland could have reintroduced the concept of criminal libel to the state, despite criminal defamation offences being abolished as recently as 2009.

The case itself was one of a particularly grim relationship break up. Names are not available as the people involved were also locked in a criminal case in which the male partner was accused of rape and false imprisonment, though he was acquitted of both.

But the details available are: couple breaks up in January 2011. They remain in touch. In April 2011, man goes to woman’s house to, according to the Irish Times’s report “confront her over a perceived infidelity”. Man later leaves woman’s house, but not before stealing her phone. Man goes through woman’s messages, which suggest she has started a new relationship. Man opens woman’s Facebook on phone and posts remarks from her account, making it appear that she is presenting herself as a “whore” who would take “any offers”. Drink was a factor, as the Irish court reporting phrase goes.

This action led to a charge under the Criminal Damage Act 1991, under which “A person who without lawful excuse damages any property belonging to another intending to damage any such property or being reckless as to whether any such property” can find themselves liable to a large fine and up to 10 years in prison.

In this case, the defendant was found guilty and fined €2,000.

The judge, Mr Justice Garrett Sheehan, is reported to have asked how to assess the “damage” when nothing had actually been broken. Prosecutors replied that the case was in fact more akin to harassment and that the “damage” had been “reputational rather than monetary”.

The first question here is obvious: if the facts of the case were more akin to harassment, then why were charges not brought under Section 10 of Ireland’s Non-Fatal Offences Against The Person Act, which would cover anyone who “by his or her acts intentionally or recklessly, seriously interferes with the other’s peace and privacy or causes alarm, distress or harm to the other”? Wouldn’t this be the obvious piece of legislation to use?

But after that, there are a few more: Who actually owns a Facebook profile? And does reputation count as property? And crucially, has Mr Justice Sheehan created a criminal libel law?

Ireland has a complicated relationship with social media. On the one hand, to be plain about it, the big online companies create a lot of employment in Ireland. Facebook, Twitter and Google all employ a lot of people in the country. On the other hand, it is susceptible to the same moral panics as anywhere else, and in a small, largely homogenous country, panics can be enormously amplified.

When government minister Shane McEntee committed suicide in Christmas 2012, the tragic story somehow became conflated with social media and online bullying. McEntee’s brother blamed the minister’s death on “people downright abusing him on the social networks and no names attached and they can say whatever they like because there’s no face and no name”. But his daughter later refuted that claim, saying: “Dad didn’t use Twitter and wasn’t a huge fan of Facebook. So I don’t think you can blame that and I’m not going to start a campaign on that.”

The subsequent debate on social media bullying was almost tragic in its simplicity, the undisputed highlight being Senator Fidelma Healy-Eames describing to the Parliamentary Joint Committee on Transport and Communications how young people are “literally raped on Facebook”.

As ever in discussions that involve social media, a generation gap opens up, or is invoked, between younger “natives” who supposedly instinctively understand the web, and a political and judicial class who are apparently hopelessly out of touch. There is certainly an element of truth to this (I have sat in courts and watched judges express utter bafflement at the very concept of Twitter), but in general, what is actually happening is legislators, magistrates and the judiciary are desperately trying to apply existing, supposedly universal laws to phenomena to which they are simply not suited. This is where controversy usually arises, for example in the UK’s use of public order laws when the only threat to public order is a Twitter mob — as in the case of jailed student Liam Stacey; or use of laws against menacing communications in instances where it’s clear no menace was intended — such as Britain’s now infamous Twitter Joke Trial.

In the current Irish case, it seems obvious that harassment would have been the more relevant charge, but in this instance, that’s not what we have to worry about. The real concern is that by apparently putting reputation in the category of property which can suffer damage, the court has now created a precedent where damage to a person’s reputation, whether by “fraping”, tweeting, or even just the getting facts wrong in a news story, could lead to criminal sanction.

And the very worst thing is that no one seems to have noticed.

From the introduction of the new blasphemy law onward, Ireland has seen a slow, stealthy erosion of free speech. It’s not clear what will get people to start paying attention, but the country needs to be more vigilant.

This article was posted on July 10, 2014 at indexoncensorship.org

Index Index – International free speech roundup 16/01/13

A Bangladeshi blogger is in critical condition after being stabbed by three unknown attackers on 14 January in Dhaka, the country’s capital. Asif Mohiuddin, 29, is the author of a blog about atheism widely read in Bangladesh. His posts often satirise religion, with one post referring to god as “almighty only in name but impotent in reality.” Press reports have referred to Mohiuddin as a “militant blogger”, although there is no suggestion that his work incited violence. Shortly after the attack, the South Asian Meeting on Internet and Freedom of Expression was held in Dhaka, and participants called on the government to protect journalist’s human rights under the constitution of Bangladesh, and bring the perpetrators to justice.

Siam Sarower Jamil - Demotix

     – Blogger Asif Mohiuddin was stabbed on 14 January

Nigerian newspaper editor was shot dead on 12 January. Ikechukwu Udendu was killed in the southeastern city of Onithsa by an unknown assailant, who then phoned the victim’s brother to instruct him to collect the dead body. The editor was on his way to supervise the printing of the mothly newspaper Anambra News when he was attacked. Arrests and attacks on the Nigerian media are frequent but rarely resolved. On 26 April 2012, the offices of daily newspapers in the cities of Abuja and Kaduna were bombed.

Last week saw widespread attacks on the media in Greece, after bombs were placed outside of the homes of five journalists on 11 January. Homemade devices were used to carry out arson attacks on Chris Konstas, Antonis Liaros, George Oikonomeas, Petros Karsiotis and Antonis Skyllakos, members of the Journalists’ Union of Athens Daily Newspapers. Anarchist group Lovers of Lawlessness said they committed the attacks in protest against the journalists for allegedly covering the government favourably since the financial crisis began in 2009.

An editor of investigative weekly Alaan Magazine has been charged with defamation in Morocco, after alleging that a government official had ordered champagne to his hotel room during a business trip. Youssef Jajili printed a hotel receipt under Minister of Manufacture and Trade Abdelkader Amara’s name, which charged him for the alcohol while he was away at the expense of taxpayers. Amara denied the claim, saying that someone had ordered the champagne while he was out of the room. Jajili will appear in court on 28 January, and faces one year imprisonment and if found guilty under section 52 of Morocco’s defamation laws. Even though alcohol is widely available in Morocco, it is forbidden to followers of Islam, who make up the majority of the country.

On 15 January, Facebook announced a new format to its search facilities: “graph search”. The new tool will allow users to search for specific content, people, or images on the site. Critics suggest that the move could undermine Facebook’s privacy policy and allow users less control over their personal information, but Facebook founder and CEO Mark Zuckerberg said that the graph search is “privacy aware,” since the new tool will only search content already shared with the user.