Unlawful changes in the public media

This post contains an excerpt from the report “A year of devastation of the rule of law”, published by the Ordo Iuris Institute on 13 December. The full report is available at https://https://en.ordoiuris.pl/civil-liberties/year-of-devastation-of-rule-of-law-in-poland

Main theses

• Late in the evening of December 19, 2023, the Sejm, dominated by the December 13 Coalition, passed a resolution “on the restoration of legal order and the impartiality and integrity of the public media and the Polish Press Agency.” 
• The next day, people claiming to be the new chairmen of the Supervisory Boards entered the buildings of Telewizja Polska, Polskie Radio and the Polish Press Agency, accompanied by anonymous individuals who were probably employees of private security companies. 
• The changes in the public media were made illegally – they violated powers that were statutorily reserved for the National Media Council. 
• On December 27, 2023, a communiqué was published by the Minister of Culture and National Heritage, Lieutenant Colonel Bartłomiej Sienkiewicz, in which he announced that the companies Telewizja Polska S.A., Polskie Radio S.A. and Polska Agencja Prasowa S.A. had been put into liquidation. 
• In the case of public broadcasting companies, it is not possible to put them into liquidation without prior statutory amendments to broadcasting laws.

Media pluralism and the rule of law: the case of Poland

Until 1987, Poland had only public media. The opening of the media market began in 1993, when Polsat TV obtained a license for over-the-air broadcasting throughout the country. Three years later, TVN obtained a license for supra-regional broadcasting across northern Poland . As a result of its capital structure, the Polish media is currently dominated by an oligopoly. The three largest broadcasters in Poland in 2020 were those operating on publicly-accessible, over-the-air television multiplexes – TVP: 28.25%; Polsat: 24.43%; and the TVN Group: 23.45% Although the public media still hold a significant position in the television market, there can be no question of a monopoly or even a dominant market share. Their position is even weaker when it comes to the radio market: the share of public radio stations in 2020 was only 14.9% . For years, the public media have also faced accusations of politicization. This trend is by no means limited to recent years . As early as 2010, during a lecture given at Jagiellonian University, Jarosław Kaczyński asserted that “the factor that has a huge impact on whether a state is under the rule of law is the existence of systems of external, non-state control. The media are at the center of this system. In Poland, the media are one-sided – that is, an overwhelming majority of them broadly support a single political viewpoint – namely, the Left-liberal view.” Paradoxically, the alleged politicization of the public media over the past eight years contributed to greater pluralism in the overall media market. A fairly stable media arrangement developed in Poland during the period between 2015 and 2023, with the most serious players repre-senting different ideological and political positions. This phenomenon progressed to an extreme in which one could observe radically different profiles, and in part the actual creation of reality itself by the various media entities, especially the big TV stations and Internet sites. In general, however, a certain form of stability arose, with the public media presenting content that they produced in accordance with the ruling party’s line (and thus they most often adopted a conservative-oriented perspective). The private media, on the other hand, and especially those owned by foreign companies, presented Left-liberal views. Initially, they even acted as a restraining force on the opposition parties, such as by criticizing those voices that sometimes advocated cooperating with the ruling coalition of the time. The phenomenon of the public media’s politicization, understood as the subordination of their message to the interests of the government currently in power, has always been an issue in Poland, including through-out the entire era of the Third Polish Republic (which succeeded the communist Polish People’s Republic in 1989). Between 2015 and 2023, however, it also had the effect of putting an end to the Left-liberal ideol-ogy’s monopoly on media coverage – mainly on television; in the cases of the radio and newspaper market, this phenomenon was less pronounced. In practice, this meant that the public’s views were much better reflected in the media market’s structure at the time, where almost all types of voters had their own par-ticular outlet. The media in Poland still had an oligopolistic capital structure, but nevertheless offered a rel-ative form of political pluralism across the various media outlets despite the fact that there was a lack of pluralism within each of them . Throughout the Law and Justice-led United Right coalition’s eight-year reign, no significant conservative private television network was established, however. The TV market was reflected in public opinion polls that were conducted concerning television stations as sources of daily information on events in Poland and the world which were conducted by the Centre for Public Opinion Research (CBOS) in early 2023. According to these surveys, 28% of adult Poles said that the main source of their knowledge of current events is public television (TVP), while 27% said the same of the TVN network and 18% attested that they get their information from Polsat. Only 0.4% said that they get this information from the Catholic channel Telewizja Trwam, while 0.1% said they get it from the private conservative news channel Telewizja Republika TV. It is also interesting to link the respondents’ preferred TV station with their declared party sympathies. When asked which of the aforementioned stations is their main source of knowledge about events in Po-land and the world, 70% of United Right (i.e. Law and Justice and its allies) voters pointed to public televi-sion (15% to Polsat, 4% to TVN), while 69% of Left-liberal Civic Coalition voters pointed to TVN (11% to Polsat and barely 1% to TVP). The answers given by the supporters of other political groups were more varied. Voters of the Left party and Szymon Hołownia’s centrist Poland 2050 pointed primarily to TVN (47% and 43%, respectively) and Polsat (13% and 32%), while those declaring support for the agrarian party PSL and the Right-wing Confederation (an alliance of Christian nationalists and libertarians) instead indicat-ed Polsat (39% and 21%), TVN (28% and 17%), and TVP (23% and 9%) . It is worth mentioning that among Confederation voters, as many as 52% declared that they do not watch TV at all or else get their infor-mation from stations other than those mentioned. The above data clearly indicated that Law and Justice voters most often drew their knowledge of the world not from the commercial media, but from the public media. Thus, the public media and TVN have become very much focused on a particular political identity. The events of December 2023 showed how dangerous this state of affairs is for media pluralism.

Donald Tusk’s government takes control of the public media

Late in the evening on December 19, 2023, the Sejm, which was by then dominated by the so-called December 13 Coali-tion, passed a resolution “on the restoration of legal order and the impartiality and integrity of the public media and the Polish Press Agency.” This resolution accused the public media of, among other things, being totally subordinated politi-cally and of being used as a mouthpiece for party and government propaganda, as well as of discrediting and spreading hate speech against the opposition and critics of the previous government. Later that night, Lieutenant Colonel Bartłomiej Sienkiewicz, in his new post as Minister of Culture and National Heritage, held general meetings regarding the public television and radio companies which led to the appointment of new supervisory boards for Polish Television, Polish Ra-dio, and the Polish Press Agency . This happened despite the Constitutional Tribunal’s safeguard order (ref. K 29/23), which obliged the State Treasury to refrain from taking any steps toward liquidating the public broadcasting companies or making changes to their boards of directors.
The very next day, events took place that had no precedent in Polish history since the end of martial law in the 1980s, under communist rule. Individuals claiming to be the new chairmen of the public media’s super-visory boards, accompanied by anonymous individuals who were likely employees of private security firms, entered the buildings of Polish Television, Polish Radio, and the Polish Press Agency. The broadcast of the public news television channel TVP Info was interrupted during the airing of a special edition of News that was being hosted by presenter Adrian Borecki. There was also a violation of the physical integrity of MP Joanna Borowiak, who was on site. The evening edition of the flagship news service of Polish public televi-sion was thus prevented from airing. On the other hand, the Television News Agency building remained under the control of TVP SA’s legal authorities until January 2024. Non-governmental organizations, in-cluding the executive board of the Association of Polish Journalists and the Helsinki Foundation for Hu-man Rights, expressed opposition to the unlawful actions taken by Donald Tusk’s government.
On December 27, 2023 the Minister of Culture and National Heritage, Lieutenant Colonel Bartłomiej Sienkiewicz, an-nounced that the companies Telewizja Polska SA, Polskie Radio SA, and Polska Agencja Prasowa SA had been put into liquidation. The pretext for this decision was the refusal of the President of the Republic of Poland, Andrzej Duda, to sign the act of December 21, 2023 regarding special arrangements for the implementation of the budget law for 2024 .
On January 10, 2024, in the XIII Economic Department of the National Court Register of the District Court for the City of Warsaw, the motion to appoint Tomasz Sygut as Chairman of Telewizja Polska SA’s Board of Directors was dismissed. On January 22, 2024 the Registry Court in Warsaw dismissed applications to record the opening of liquidation proceedings for Telewizja Polska SA and Polskie Radio SA in the National Court Register (hereinafter: KRS) . The motion to record the liquidation proceedings of the Polish Press Agency SA in the KRS was nevertheless granted, however.

The legal basis for the public media’s operations in Poland vs. the way they were taken over by the “December 13 Coalition”

Public broadcasting companies have a special legal status that is defined primarily by the provisions of the Broadcasting Act of December 29, 1992 (hereinafter: Broadcasting Act) and the Act of June 22, 2016 on the National Media Council (hereinafter: Media Council Act) . In addition, it should be pointed out that the status of the Polish Press Agency is regulated by a separate normative act: the act of July 31, 1997 on the Polish Press Agency (hereinafter: Press Agency Act) . The manner in which the government coalition has, in effect, taken control of the public media therefore requires consideration of these media outlets’ special status. Public broadcasting companies operate in the form of single-member joint-stock companies belonging to the State Treasury (Article 26[1-3] of the Broadcasting Act). It is the same for the Polish Press Agency (Article 3[1] of the Press Agency Act).
The rules for the appointment and dismissal of the personnel of the public broadcasting companies and the Polish Press Agency are regulated in a special way. This is because the issue is regulated by the law govern-ing the National Media Council. Pursuant to Article 2(1) of the National Media Council Act, it is the National Media Council that is the responsible body in matters of appointing and dismissing the personnel of the public broadcasting companies and the Polish Press Agency. Thus, the provisions of the law of September 15, 2000 – Code of Commercial Companies (hereinafter: CCC) do not apply to the appointment and dis-missal of the personnel of the public radio and television broadcasting companies and the Polish Press Agency. Indeed, as the Constitutional Tribunal opined in its resolution of December 13, 1995, ref. W 6/95, “the relevant provisions of the Broadcasting Act have the character of special provisions (lex specialis) in relation to the provisions of the Commercial Code (lex generalis).” Hence, the general conflict rule applies in the present case lex specialis derogat legi generali, which can be derived both from the letter and spirit (i.e., essence) of the law. Confirmation of the CCC’s exclusion is found in the provisions of the Broadcasting Act and the Press Agency Act.
Pursuant to Article 26(4) of the Broadcasting Act, the CCC’s provisions apply to the public broadcasting companies, subject to articles 27-30 of the Broadcasting Act and with the exception of articles 312 and 402. Pursuant to Article 27(3) of the Broadcasting Act, members of the boards of directors of the public broadcasting companies, including the chairmen of these boards, are appointed and dismissed by the Na-tional Media Council. Pursuant to Article 28(1e) of the Broadcasting Act, the members of the supervisory boards of the public broadcasting companies are appointed and dismissed by the National Media Council. Thus, the provisions of the Commercial Companies Code, which were invoked by Lieutenant Colonel Bartłomiej Sienkiewicz in his attempt to make personnel changes in those who run the companies Telewizja Polska SA and Polskie Radio SA, do not apply. This – in view of the basic principles of linguistic and systemic interpretation – is unquestionable.
Pursuant to Article 5 of the Press Agency Act, the provisions of the CCC are applicable to the Polish Press Agency SA, unless the law itself provides otherwise. According to Article 8(2) of the Press Agency Act, members of the Board of Directors, including the President of the Board of Directors of the Polish Press Agency, are appointed and dismissed by the National Media Council. According to Article 9(1) of the Press Agency Act, the supervisory board of the Polish Press Agency is appointed by the National Media Council.
As the law currently stands, the only competent body for making personnel changes in the public broad-casting companies and the Polish Press Agency is the National Media Council. The Minister of Culture and National Heritage has no authority in this regard. Just for the record, it should be noted that neither the Sejm’s resolutions nor the opinions of legal scholars constitute a source of law, and they do not affect the validity of the provisions indicated above. It should also be noted that already in the Constitutional Tribu-nal’s resolution of December 13, 1995, ref. W 6/95, it was noted that the purpose of having public radio and television in the form of single-person joint-stock companies of the State Treasury was to ensure that they did not take on “the character of a government agency.” At the time, the Tribunal noted that the mul-ti-level structure in managing the affairs of public radio and television (which then included the National Broadcasting Council and the management and supervisory boards of the media companies) was intended to “ensure their independence,” or at least “preclude unilateral subordination.” The current flaw in this sys-tem, specifically, by marginalizing the importance of the National Broadcasting Council in favor of the Na-tional Media Council, in no way implies that it is permissible for any minister to appropriate the powers of the National Council. It should also be noted that when a public official exceeds his authority, it is a crime that is prosecutable by public indictment and punishable by imprisonment for up to three years (see Article 231 § 1 of the Law of June 6, 1997 – Penal Code; hereinafter: the Penal Code ).
It should be noted that the aforementioned resolution of the Sejm dated December 19, 2023 concerning the restoration of legal order and the impartiality and integrity of the public media and the Polish Press Agency cited, among other things, the “unimplemented judgment of the Constitutional Tribunal of Decem-ber 13, 2016 (file K 13/16), which declared unconstitutional the entrustment of the National Media Coun-cil with the appointment and dismissal of public media authorities while depriving the National Broadcasting Council of participation in these processes.” It is necessary to refer briefly to this judgment, since numer-ous misunderstandings have arisen in public discourse in relation to its content.
In a judgment dated December 13, 2016, ref. K 13K 13/16, the Constitutional Tribunal, acting at the re-quest of the then Commissioner for Human Rights and now Minister of Justice, Adam Bodnar, ruled that the provisions amending the Broadcasting Act, to the extent that they exclude the participation of the Na-tional Broadcasting Council in the procedure for appointing and dismissing members of the management and supervisory boards of the public broadcasting companies, are inconsistent with Article 213(1), in con-nection with Article 14 and Article 54(1) of the Polish Constitution . This judgment therefore did not re-peal any of the provisions of the National Media Council Act, but only the provisions amending the Broad-casting Act. The Constitutional Tribunal likewise did not repeal any of the previous provisions of the Broad-casting Act or the Press Agency Act, cited above. The verdict rather concerned those regulations according to which members of the management and supervisory boards of the public broadcasting companies were appointed and dismissed by the minister responsible for the Treasury.
It should be recalled that, in the motion initiating the proceedings before the Constitutional Tribunal, the purpose of the amendment in question was alleged, among other things, to be to gain direct influence over the staffing of the public media by the parliamentary majority and the Council of Ministers. Now it seems that Adam Bodnar, in his role as Minister of Justice, has revised his views and recognizes that it is expedient and desirable to obtain direct influence over the staffing of the public media by the parliamentary majority and the Council of Ministers. However, as the Tribunal itself noted in this ruling, “In the current state of the law, there is no legal norm granting the minister responsible for the State Treasury the competence to appoint and dismiss members of the board of directors of a public broadcasting company.” This opinion has remained relevant to this day.
The reference to the National Media Council was found not in the ruling itself, but in the rationale of the Constitutional Tribunal’s cited decision. The Tribunal pointed out: “[With] the entry into force of the Law on the National Media Council, the appointment of persons to perform the listed functions is carried out with the participation of the National Media Council. This body is authorized to appoint members of the man-agement and supervisory boards of the public broadcasting companies and to approve the appointment of the director of the field branch of such a company.”
As the Constitutional Tribunal further elaborated: “The Tribunal did not rule […] on the question of granting certain competencies to a newly-established body such as the National Media Council. The subject of its ruling was solely whether the legislature could deprive the National Broadcasting Council of certain powers. In the Tribunal’s view, the role of the entity performing the function of guardian of the public interest in broadcasting, as defined in the constitution, requires that the National Broadcasting Council have the ability to effectively influence the operations of the public media. This view is based on the conviction that it is impossible to exercise the functions of a legal protection and control body – and this is how the National Broadcasting Council is characterized in the constitution – without the existence of appropriate competen-cies that will not only focus on the implementation of control tasks, but also enable the body in question to take action in order to achieve constitutionally-defined goals.”
Commissioner for Human Rights Marcin Wiącek aptly referred to the Tribunal’s cited opinion: “The Act on the National Media Council (RMN) and the amendments it made to the Broadcasting Law have not been challenged in a separate application to the Constitutional Tribunal (CT). The provisions of the National Me-dia Council Act, as well as the resulting amendments to the Broadcasting Act, remain in effect. […]. As-sessing the effect of the K 13/16 judgment from this point of view, one must come to the conclusion that the ruling – even though it did not directly concern the provisions of the Broadcasting Act, as it was in effect at the time of the ruling – led to the overturning of the presumption of this legal norm’s constitu-tionality as soon as it was promulgated, allowing the appointment and dismissal of the management and supervisory boards of the public broadcasting companies without the participation of the National Broad-casting Council (KRRiT). Thus, the legal basis for the appointment and dismissal of boards of directors and supervisory boards does not enjoy a presumption of constitutionality whenever the applicable regulations do not provide for the participation of the National Broadcasting Council in these procedures – regardless of which body in the current state of the law is authorized to appoint and dismiss these bodies.”
In other words, it follows from the Constitutional Tribunal’s ruling that depriving the National Broadcasting Council of its functions runs contrary to its constitutional role, and the provisions of the law on the Na-tional Media Council do not enjoy the presumption of constitutionality, even though at the same time they are still in force. Similarly, it follows from this ruling that solutions which exclusively entrust the authority to carry out personnel changes in the public broadcasting companies to the Council of Ministers or its members, as we have seen in the case of Lieutenant Colonel Sienkiewicz’s actions, run contrary to the Constitution of the Polish Republic.
From the point of view of the Constitution of the Polish Republic, it is desirable to grant the competencies of the National Media Council to the National Broadcasting Council, rather than unjustifiably assign them to the Minister of Culture and National Heritage.

Other possible violations of the law in the takeover of the public media

The actions of Lieutenant-Colonel Bartłomiej Sienkiewicz, Minister of Culture and National Heritage, led to the discontinuation of the public television channels TVP Info and TVP 3, both regional broadcasters – as well as TVP World. It seemed that the whole undertaking was planned and coordinated . TVP Info and the regional broadcasters’ news programs were not resumed until December 29 , while TVP World – despite announcements stating otherwise – did not resume broadcasting until March 11, 2024. Given that these public television channels were not allowed to broadcast, the company did not fulfill its obligations under its contracts (as, for example, in terms of showing advertisements). This exposed Telewizja Polska to huge financial losses. The initial estimates by experts of the losses suffered by TVP Info alone during the sus-pension of its broadcasting indicate that it may have amounted to about PLN 130,000 (approximately $31,000) per day .
This may involve not only civil (i.e. financial) liability, but also criminal. According to Article 296 § 1 of the Penal Code, whoever is obliged under a provision of the law, a decision by a competent authority, or a con-tract to deal with the property affairs or business activities of a natural or legal person or an organizational unit without legal personality and, as a result of abusing the powers granted to him or by failing to fulfill a duty incumbent upon him, causes substantial property damage to such person, shall be subject to a penalty of deprivation of liberty from three months to five years. If the perpetrator of such a crime causes proper-ty damage of great magnitude, then he is punishable by imprisonment from one to ten years (Article 296 § 3 of the Criminal Code). “Damage of great magnitude” is considered to be damage (it is both loss – damnum emergens, as well as lost benefits – lucrum cessans) the value of which exceeds, at the time the criminal act was committed, one million PLN (approximately $2.6 million) (Article 115 § 6 in conjunction with Article 115 § 7a of the Criminal Code).
A separate issue is criminal liability in connection with the commission of other crimes, such as abuse of power (Article 231 of the Criminal Code), forcing someone to carry out a certain act under the influence of a threat (Article 191 of the CC – this may have involved the forcing of the media companies’ legal authori-ties to sign documents under duress), or violation of physical integrity (including that of an MP – Article 217 of the Criminal Code). This includes the perpetrators, as well as those directing and recommending said perpetrators.
It should also be noted that certain individuals went to work in the buildings of Telewizja Polska without any legal basis, and therefore they were in violation of the labor laws as well as health and safety standards – i.e. outsiders were allowed to work. In turn, TVP’s employees and contractors have not been allowed to work, which further impacts the company’s financial liability and therefore constitutes an act to its detri-ment. However, an assessment of the validity and effectiveness of any decisions made by persons who, despite being unauthorized to do so, performed legal acts on behalf of the public broadcasting companies (these acts may in fact have been approved by “real” bodies) remains in a kind of limbo. This raises the issue of possible liability for damages to these companies.

Putting public media into liquidation

On December 27, 2023 the Minister of Culture and National Heritage, Lieutenant Colonel Bartłomiej Sienkiewicz, by citing the alleged decision of the President of the Republic of Poland to “withhold funding from the public media” (in fact it was merely his refusal to sign a law concerning the annual budget, which only partially affected the public media’s financial situation), decided to put the companies Telewizja Polska SA, Polskie Radio SA, and Polska Agencja Prasowa SA into liquidation.
This decision sparked controversy . First of all, the public broadcasting companies possess a special status. According to the Constitutional Tribunal’s jurisprudence, these companies operate in a specific essential context resulting from the direct connection of public broadcasting to the maintenance of freedom of speech and the public’s right to information . In carrying out a specific mission of a public nature, the char-acter of the public broadcasting companies is not determined by the need to generate profits or any other goal of an economic nature. Hence it is not possible to put them into liquidation. The nature of the liquida-tion proceedings regulated by articles 459 et seq. of the CCC is determined by its purpose: the termination of the company’s interests and its removal from the register. In the case of public radio and television broadcasting companies, this would only be possible with parallel statutory amendments to the broad-casting laws. The inadmissibility of the liquidation of the public broadcasting companies was confirmed by the Constitutional Tribunal in its ruling of January 18, 2024, ref. K 29/23, which stated that, in view of the content of the legal system’s provisions, including articles 27-30 of the Broadcasting Act, public broad-casting companies cannot be dissolved and liquidated.
It should therefore be assumed that putting the public media into liquidation is in fact afraudulent act. Lieu-tenant Colonel Sienkiewicz’s own statements seem to indicate this: “First of all, liquidation is also a form of restructuring – that is, restoring proper order in companies. Liquidation can be canceled at any time, and it can also take a very long time.” In this context, however, it should be noted that, according to Article 468 § 1 of the CCC, liquidators should complete the company’s ongoing business, collect debts, fulfill obliga-tions, and liquidate the company’s assets (these are so-called “liquidation activities”), whereas they may undertake new business only when it is necessary to complete the company’s ongoing affairs. This puts a question mark over the permissibility of those agreements that are necessary for at least launching new journalistic or entertainment programs, or even – in certain situations – perpetuating existing ones in their current formats (e.g., by recording a new season of a program). The validity of such legal actions, taking into account their admissibility within the framework of liquidation proceedings, shall be evaluated on a case-by-case basis since, as a rule, actions that run contrary to the law are invalid (Article 58 § 1 of the Act of April 23, 1964 – Civil Code ). If this assumption is to be made about the way in which the entire liquidation appears, however, it should be recalled that, according to the general rules of civil law, pretended acts are also, as a rule, invalid by nature (see 83 § 1-2 of the Civil Code).

Summary

For many years, the operations of the public media have given rise to various controversies that primarily involve allegations regarding their politicization. In the period from 2015 to 2023, these allegations were especially made by those who nevertheless saw no reason to criticize the lack of pluralism as well as the politicization of the public media during the period of the PO-PSL coalition government from 2007 to 2015. Nevertheless, the lack of pluralism in the public media itself – regardless of the political alignment with which the media’s activities are associated – is a state of affairs that always deserves criticism from the perspective of Polish constitutional principles.
This does not, however, justify making changes to the public media in a completely unlawful manner that is incompatible with the principles of a democratic state of law. This is how the actions of the Minister of Culture and National Heritage, Lieutenant Colonel Bartłomiej Sienkiewicz, must be evaluated. Although one may have doubts about the compatibility of the regulations governing the National Media Council with the Constitution of the Polish Republic, they are nevertheless universally binding regulations that have not been repealed by any legislative or judicial procedure (i.e. as a result of their derogation by a new law or a Constitutional Tribunal ruling). The application of the Commercial Companies Code’s provisions to making personnel changes in the public broadcasting companies stands in clear contradiction to both the wording of the provisions of articles 27-30 of the Broadcasting Act as well as these regulations’ very purpose, which was aptly defined in the Constitutional Tribunal’s case law already back in the 1990s.
It should be recalled that taking unlawful actions entails liability. It can take a variety of forms and involve both policymakers and those who carry out their will. Depending on potential future court decisions, both civil (financial) and criminal liability may be at stake.

Bartosz Zalewski