OSCE criticises Poland for retaining the offence of defamation

The OSCE Representative on Freedom of the Media, Dunja Mijatović, issued a letter to the Polish Minister of Justice, Jarosław Gowin, regarding the offence of defamation. Dunja Mijatović  argues that protesting against Andrzej Poczobut being sentenced by a Belarusian court for defaming President Lukashenko, and simultaneously retaining a controversial legal regulation, makes Poland lose its credibility.

“Instead of accepting the fact that public officials have to submit themselves to criticism and be ready to face harsh comments, [the Minister of Justice] gives a lecture on journalistic work methods and maintaining credibility” – says D. Mijatović in her letter to the head of the Polish Ministry of Justice. The intervention of the OSCE representative has been triggered by the letter of J. Gowin to HFHR in which the Polish Minister of Justice criticised the HFHR’s position regarding the need to decriminalise defamation.

According to D. Mijatović, retaining the offence of defamation undermines Poland’s credibility in the world, especially in light of the fact that Poland protests against violations of freedom of speech standards in other countries. Additionally, the OSCE representative points out that “freedom of speech and the free flow of information are fundamental values of OSCE, and those include the right of journalists to voice criticism and reveal the faults and abuses of those in power.”

D. Mijatović gave reasons for her appeal to the Polish Ministry of Justice in the OSCE Regular Report published in June 2012. In the report’s section on Poland, Mijatović emphasises the need to decriminalise speech offences to secure and promote media freedom. The OSCE representative expresses her hope that the Minister “will reconsider his position and lend support to a repeal of the Criminal Code’s provisions on defamation.”

Let us remind that in February 2012, the organisers of the campaign ‘Let’s delete Article 212’, the Helsinki Foundation for Human Rights, the Association of Local Newspapers and the Polish Chamber of Press Publishers, appealed to the Minister of Justice, Jarosław Gowin, to take legislative initiative to abolish criminal liability for defamation. In April, the signatories received a letter, signed by the Deputy Minister of Justice, Michał Królikowski,  justifying the need to retain the offence of defamation in the Polish legal system. M. Królikowski expressed his opinion that article 212 of the Polish Criminal Code, especially in the context of elections, is aimed at protecting the essence of the democratic system, and the requirement to establish the intentional element of the crime provides a sufficient safeguard against the abuse of the freedom of speech of freedom of the media.

In May, HFHR challenged the reasoning of the Minister of Justice in a second letter, pointing to numerous dubious aspects related to article 212 of the Criminal Code and its functioning in the Polish legal system, such as reversing the principle of the presumption of innocence, “the freezing effect” or failure to take account of the status of public officials when justifying the need to allow for more extensive criticism.