• On March 6, the Polish Sejm passed a new law that criminalizes so-called hate speech.
• The adoption of this law could significantly limit freedom of speech in Poland and grant special privileges to arbitrarily selected social groups—similar to measures in some Western European countries, such as the United Kingdom.
• The Ordo Iuris Institute opposed the bill from the outset, publishing analyses and submitting an opinion to the government urging its rejection.
• Now, Ordo Iuris will appeal to the President of Poland to veto the law.
Ordo Iuris argues that this new law, passed as an amendment to the Penal Code, threatens the right to express opinions, as guaranteed by Article 54(1) of the Polish Constitution. Furthermore, expanding the list of “protected characteristics” to include “sexual orientation” and gender (“gender identity”) could—based on the experience of Western countries—lead to an increasing number of restrictions over time on expressing opposition to LGBT demands and the imposition of their views on gender issues.
The Ordo Iuris Institute emphasizes that the selection of these protected characteristics is arbitrary and unjustified, and it excludes many other traits that could also be grounds for unfavorable (“hateful”) treatment. Poland’s Supreme Court already noted in 2014 that adding a few significant discrimination grounds to the existing provisions does not cover all possible discriminatory criteria, ignoring equally important ones such as mental illness, AIDS, addiction to alcohol or drugs, obesity, and homelessness.
Ordo Iuris’ concerns are shared by Alliance Defending Freedom (ADF), a leading organization that defends fundamental freedoms and human dignity before national and international institutions. ADF has submitted its own opinion on the bill.
It highlights that the European Court of Human Rights (ECHR) has repeatedly stated that freedom of expression holds “particular importance” and that states have a positive obligation to create conditions that allow citizens to participate in public debate and express their opinions without fear. Consequently, international and European law protects not only inoffensive speech but also speech that may disturb, shock, provoke, offend, or cause dissatisfaction.
However, as ADF points out, freedom of expression is not absolute: it can be justifiably restricted in certain situations. Yet, such restrictions must remain an exception, be narrowly interpreted, strictly defined, proportionate, and lawful, and they must pursue a clear objective and be implemented only when the intended goal cannot be achieved through less restrictive means.
In ADF’s assessment, the Polish government’s bill on hate speech did not meet these criteria and should not have been voted into law. ADF also notes that the UN General Comment No. 34 states that restrictions on freedom of expression should be interpreted narrowly rather than broadly. Additionally, the UN Rabat Plan of Action specifies that there must be a “direct causal link” between speech and actual harm. In contrast, the proposed law allows for imprisonment without the need to prove that a protected characteristic (e.g., “sexual orientation”) was the reason for the alleged crime.
ADF concludes that the bill is inconsistent with international human rights standards on freedom of expression and constitutes an unjustified restriction on this right, as it does not meet the conditions for a proportionate limitation of free speech.
“The ADF opinion is an important contribution to the debate on the so-called censorship law. It rightly points out that the government’s proposals undermine the fundamental principles of the international human rights system. We once again call for the rejection of this bill,” emphasized attorney Rafał Dorosiński from the Ordo Iuris Board before the law was passed by the votes of the ruling coalition MPs.
However, in the event of a presidential veto, Prime Minister Donald Tusk’s coalition does not have the necessary three-fifths majority in the Sejm to override it.
