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Second letter to the Minister of Justice: the response challenging position of the Ministry regarding Article 212 of the Criminal Code

Early this year the Helsinki Foundation for Human Rights, the Association of Local Newspapers and the Polish Chamber of Press Publishers as organisers of the campaign “Let’s delete Article 212”, urged Justice Minister Jarosław Gowin to take legislative initiative to abolish criminal liability for defamation.

The Ministry responded to the statement in April 2012 and advocated the necessity of maintaining criminal liability for defamation. The letter, signed by Michał Królikowski, Under-secretary of State, depicted a negative image of the media which, according to the Ministry, justified the entrenchment of article 212 of the Criminal Code in the Polish legal system.

The Ministry of Justice argues that the need to retain the offence of defamation in the Polish law also arises from the Poland’s Constitution which provides for the protection of a person’s honour and good name, the very purpose of the controversial article. The Ministry noted that the right to protection of one’s reputation prevails over the freedom of expression since “the consequences of derogatory gossip may last for years, sometimes even for a lifetime”.

In response to the above statement the organisations decided to address another letter to challenge the reasoning presented by the Ministry. They indicated the dubious character of article 212 of the Criminal Code and its functioning in the Polish legal system. The signatories of the letter refer specifically to the following issues: shifting the burden of proof entirely to the defendant, which is unjustified in the light of the principle of the presumption of innocence, making no distinction between fact-based and value-judgements, imposing on indicted journalists a duty to prove the true nature of their statements, even if they demonstrate that they have met the standard of professional diligence, and finally rejecting the notion that the status of public officials and other public figures should justify more extensive range of fair criticism.

The organisations highlight the fact that article 212 of the Criminal Code is often invoked in cases against persons who exercised the right to submit a citizen’s complaint. The organisations also point out to a number of other legal remedies through which the injured may seek the right to the protection of their good name.

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