How Poland rushed through the new media law – and worse it yet to come

by Krzysztof Kowalczyk

After the political transformation which took place in Poland in 1989, actions were undertaken so as to create independent, pluralistic public media. Work on the Broadcasting Act went on for quite a long time, as it was only on 29 December 1992 that the act was finally passed, and on 1 March 1993 that it entered into force.

The Act dissolved the existing Committee for Radio and Television, which was subject to the party structures, forming in its place the joint stock company "Polish Television", the joint stock company "Polish Radio" and the regional radio companies. All stocks in the aforementioned companies were taken up the State Treasury.

The Act also established the National Broadcasting Council, which constituted a state authority competent in matters of radio and television broadcasting. The National Council was composed of 9 members. Four persons were appointed by the Sejm, one chamber of the Polish Parliament; one by the Senate, the other chamber of the Polish Parliament, and three by the President.

Members of the National Council were appointed for a six-year term of office, whereby every two years, the term of office of one third of the members would come to an end. Members of the National Council were in practice impossible to dismiss (except in the case of resignation, serious illness, conviction of a deliberate criminal offence or submission of an untruthful statement in the screening process). The only possibility to dissolve the entire National Council was to have both the Sejm and the Senate reject their annual report. Even then a confirmation by the President was necessary.

Polish Sejm The Polish Parliament: Sejm; Picture by Network.nt via Wikimedia commons

In practice, the National Council was dismissed in such manner only once in history – in 2010. The National Council’s influence on the activity of the public media was manifested in, inter alia, the fact that the National Council appointed – by way of a competition – the members of supervisory boards of the public media companies (Polish Television and public radio companies). From the moment the Constitution of 1997 came into force, the National Council has had constitutional authorisation.

The Constitution states only that the National Council shall guard the freedom of speech, the right to information and the public interest in radio and television, defining that its members shall be appointed by the Sejm, the Senate and the President, with details in this regard being left to an ordinary statutory regulation.

The current structure of public media in Poland was formed in the following manner: there is the Polish Television joint stock company, the Polish Radio joint stock company and 17 regional radio companies. All of the aforementioned companies are one-person companies owned by the State Treasury, which in practice excludes privatisation thereof.

Until now, the Supervisory Boards of the public media companies were composed of seven members each. Five members would be appointed by the National Council (after running an appropriate competition), and the Minister of the State Treasury and the Minister of Culture would appoint one member each. The management boards of the public media companies were appointed and dismissed by the National Council, upon the motion of the supervisory board. The positions of the management board members were filled only after a competition procedure had first been run.

The Act provided for a closed and quite limited criteria catalogue under which the management or supervisory board members could be dismissed. It covers only: being convicted of a deliberate criminal offence, acting to the detriment of the company or occurrence of circumstances that permanently prevent a member from serving his/her function.

After the presidential and parliamentary elections which took place in Poland in 2015, the majority in both the Sejm and the Senate was won by the Law and Justice Party. The newly-elected president is a member of this party as well.

Meanwhile, the National Council and public media authorities were elected during the previous government’s term of office. The new government has decided that the public media are unfavorable towards it and that therefore their management has to be changed – so that the public service media present the stance of the current government.

These plans, re-emerging in practice since the elections, were publicly disclosed by persons linked to the new government. The programme of the party which is currently in power assumes that the existing public television and radio companies are to be transformed into institutions of higher public utility, with their governing bodies (to include one-person management boards) to be appointed by the regulatory authority for a five-year term of office1. After the change in the government, work on the relevant amendments to the law have commenced in the Ministry of Culture.

The proposed amendments to the Broadcasting Act have been referred to as the "minor broadcasting act". As well as the change in the public service media structure, the Act was also to regulate the public media financing system as the existing one turned out to be inefficient, and the collection rate of the licence fee is at present rather low.

As an interim and temporary solution, which aims only to allow the governing party to take over the public media governing bodies, the act referred to as the "minor media act" was passed. The draft law was submitted to the Sejm on 28 December 20152.

The substantiation of the draft pointed out the necessity to change "the manner of creating supervisory boards and management boards of the existing public radio and television companies and to limit the composition of the supervisory boards to three persons. This shall be connected with eliminating the participation of the National Broadcasting Council, as the electronic media market regulatory authority, in the creation of the management and supervisory boards of the companies owned by the State Treasury, which companies operate on the market in question."

The pace of work on the act was rapid indeed, as the first reading in the parliament took place already on the following day – 29 December 2015, and then the draft was referred to the Sejm committee, which accepted the report3 on 30 December 2015. The second and the third reading of the Act, leading to it being passed by the Sejm, occurred also on 30 December 2015. The Act was immediately referred to the Senate, with the Senate declaring already on the next day, i.e. on 31 December 2015, that it is not to propose any amendments. This way, the Act was passed on to the President for signing. The President signed the act on 7 January 2016.

On the very same day, the act was published in the Journal of Laws4. It came into effect on the date following its promulgation, i.e. on 8 January 2016. What is particularly interesting is the fact that the act comes as an temporary regulation, with a definite term, since article 4 thereof stipulates that the act shall expire on 30 June 2016.

The adoption of the Act was accompanied by protests by journalists – with some of them working in the public service media companies. As protest, the public service television programme managers handed in their resignations. To express protest, the director of the Polish Radio 1 broadcast every hour the national anthem alternately with Beethoven’s "Ode to Joy" (Editor’s note: "Ode to Joy" is the official anthem of the European Union, with lyrics composed by German poet Friedrich Schiller and set to music by Beethoven, also a German.) Once the Act came into force, he was sacked for violating journalistic ethics.

On the other hand, some of the journalists linked to the new government expressed their support for the amendments.

Broadcasting Vans Poland TVN24. Outside broadcasting van (SNG) during transmission from Poznan in Poland. Picture by Drozdi-Pn via Wikimedia Commons

The act of 30 December 2015 includes only four articles: the first one introduces amendments to the broadcasting act of 29 December 1992, the second and the third ones include interim provisions, whereas the fourth one pertains to the immediate coming into effect of the act.

As regards the management boards of the public media companies, the amendments in the provisions relate to: (1) waiving the competence of the National Council in the scope of running the competitions for the positions of members of the public service media supervisory boards, (2) repealing the provision for the four-year term of office of management board members, (3) introducing the rule under which it is the Minister of the State Treasury who appoints and dismisses the management board members (4) repealing the provisions which limit the ability to dismiss the management board members to some specific premises.

In this way, in place of the procedure of appointing the management board members by way of a competition, where the competition was run by the Supervisory Board, which had been elected by way of a competition by the National Council, with limits to the term of office of the management board, the Minister of the State Treasury gained an unlimited power to appoint and dismiss board members of the public media companies at any time.

And in practice the Minster of the State Treasury immediately made use of his new competence – already on the date of the act becoming effective (8 January 2016), appointing to the position of chairman of the management board of the joint stock company Polish Television a politician connected with the Party Law and Justice – Mr. Jacek Kurski. On the same day, the Minister of the State Treasury replaced the board of the joint stock company Polish Radio as well.

Further amendments pertain to the supervisory boards of the public service media companies: (1) the number of members has been limited to three members, (2) the provisions on appointing supervisory board members and limiting the grounds for their dismissal have been repealed, (3) the Minister of the State Treasury has been granted power to appoint and dismiss the supervisory board members, (4) the provision on the five-year term of office of the supervisory board members has been repealed. And so, in the scope of appointing and dismissing members of the public media supervisory boards, the Minister of the State Treasury has gained a full, unlimited competence.

In addition, the provision making changes to the articles of association of public service media companies conditional upon the consent of the National Council has been repealed (now there is no need to approve any changes into articles of association by the National Council). Moreover, the management board of Polish Television has been granted the right to appoint the directors of regional offices (until now, this power was vested in the supervisory board, acting upon a management board request).

It is the interim provisions which show the scale of the haste and the actual purpose for which the law has been passed – as they stipulate that upon the Act becoming effective, the terms of office of the Polish Radio and Polish Television management and supervisory board members shall terminate.

Furthermore, although changes to the articles of association of public service media companies, which should adjust the articles of the Act, are to be introduced within 30 days from the moment of the act coming into force, the current provisions of the articles of association are in practice no longer applicable.

The Act also introduces the possibility to interfere in the individual labour law relations between the public service media companies and members of their management boards. As stipulated in the amendment, the relations in question shall terminate upon the moment of appointment of the new management board members. Furthermore, the public service media companies will be allowed to terminate the non-competition clauses, with which the existing members of the management board were bound until now. In this case, the provisions of the act shall take precedence over the earlier civil law agreements.

When assessing the regulation that has been introduced, it is hard to escape the impression that it comes as the effect of performing a certain political plan by the winners of the recent elections, who seem to believe in the cuius regio eius radio rule. Such actions have in practice nothing in common with the independence of the public service media and their pluralistic character. In this way, the public media just became a government mouthpiece.

Unfortunately, similar practices have been occurring in Poland by the previous changes of government (just to name, for instance, the dismissal of the National Council in 2010). Still, it is obvious that even the possibly most erroneous and reprehensible actions of predecessors do not allow the new government to act in the same way. One can see that the politicians in Poland treat the public media as some kind of a political prize, and that the statutory regulations regarding the independence of the public service media turn out to be not worth the paper they are written on. To change this state of affairs, one would need to change the political culture in Poland, or to introduce relevant regulations which would guarantee public media independence on an EU level.

[1] Law and Justice’s program – 2014, page 142; retrievable here

[2] Sejm paper No. 158

[3] Sejm paper No. 161

[4] Journal of Laws of 2016, item 25; published on 7 January 2016

Krzysztof Kowalczyk

Krzysztof Kowalczyk, attorney-at-law, is a partner at BSJP Brockhuis Jurczak Prusak in Warsaw, Poland.