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Position on proposed amendment to Criminal Code’s article 212

The Helsinki Foundation for Human Rights, the Polish Chamber of Press Publishers (PCPR) and the Association of Local Newspapers (ALN) have sent another letter to the Ministry of Justice concerning article 212 of the Criminal Code (CC). The latter has been drawn up in response to the proposed modifications of the Criminal Code’s provisions on defamation presented by the Ministry in September 2012. The organisations note in the letter that the Ministry’s proposal fails to address many of their recommendations made during community consultations and the proposed changes are too superfluous. Further, they are not even a middle step on the way to a complete depenalisation of defamation.

The Ministry of Justice submitted two proposals of amendments to art. 212 CC. Neither of them abolishes the criminal liability for defamation. Instead both proposals limit the penalties for this offence by eliminating the prison sentence. In addition, they provide for the modification of certain features of this prohibited act (it is suggested that only an offence of defamation “by means of mass communication” should be penalised) and the change of the legal defence contained in art. 213 CC (by deleting the words “action in the defence of a socially justifiable interest”).

The authors of the letter gave a critical assessment of the above proposals. “In fact, these proposals maintain the current status quo (defamation carries penalties as before), while the proposed changes are directed against the journalistic community and as such are totally against not only expectations of the media and NGOs but also the standards of protection of the freedom of expression in a democratic state ruled by law”, reads the letter to the Ministry of Justice.

The signatories of the letter highlighted that the ministerial amendment, if adopted, will neither limit the number of criminal cases brought against journalists nor substantially improve their legal position and status as parties to the proceedings. They will still have to suffer the inconvenience of criminal trial including the risk of having a criminal record, which preserves the “freezing effect” of article 212 and may lead to self-censorship. “For these reasons we should give some serious thought to the possibility of amending the criminal code to afford a special protection to journalists. (…) Excluding defamation made by means of the media from the list of punishable offences would be in line with the European standards of the protection of freedom of expression”, reads the letter.

According to the HFHR, PCPR and ALN, the remedies available under civil and press law provide sufficient legal redress for parties whose rights have been violated. As noted by the authors of the letter this is particularly justified in view of the fast-track regime for seeking the publication of corrections introduced in November 2012.

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