Defamation remains a criminal offence in Poland.
The Polish Criminal Code provides the following offences:
Defamation (Criminal Code Art. 212): Defamation is defined as imputing “to another person, a group of persons, an institution or organisational unit, conduct or characteristics that may discredit them in the face of public opinion”. The penalty for defamation is a fine or restriction of liberty .
Insult (Criminal Code Art. 216): Insult consists in insulting another person in their presence, or in their absence but with the intention of having the insult reach them. The penalty for insult is a fine or restriction of liberty.
For both offences, the penalty is stricter if committed through the mass media. In such cases, the punishment may be a fine, restriction of liberty, or imprisonment for up to one year. In addition to these penalties, the court can, in the case of both defamation and insult, also award a supplementary payment either for the offended party, the Polish Red Cross or another social cause indicated by the offended party. According to Art. 215 the offended party can also require publication of the court’s judgment.
Criminal Defamation of Public Officials
Insulting a public official or a person called upon to assist him in the course of or in connection with the performance of official duties is a criminal offence under Art. 226(1) of the Polish Criminal Code. The penalty is a fine, restriction of liberty or imprisonment for up to one year.
Criminal Defamation of the Head of State
Publicly insulting the President of Poland is a criminal offence under Art. 135(2) of the Polish Criminal Code. The penalty is imprisonment for up to three years.
Criminal Defamation of the State and its Symbols
Publicly insulting the Nation or the Republic of Poland is a criminal offence under Art. 133 of the Polish Criminal Code. The penalty is imprisonment for up to three years.
Publicly insulting, destroying, or removing a symbol of the state, such as the Polish flag, is an offence under Criminal Code Art. 137(1). The penalty is a fine, restriction of liberty or imprisonment for up to one year.
Publicly insulting or humiliating a “constitutional authority of the Republic of Poland” is a criminal offence under Art. 226(3). The penalty is a fine, restriction of liberty, or imprisonment for up to two years.
Criminal Defamation of Foreign Heads of State
Offending the head of a foreign state or the head of the diplomatic delegation of a foreign state is a criminal offence under Art. 136(3) of the Polish Criminal Code. The penalty is imprisonment for up to three years.
Publicly insulting “a person belonging to the diplomatic personnel of a mission of a foreign country to Poland, or on a consular official of a foreign country in connection with the performance of their official duties” on the territory of Poland is a criminal offence under Art. 136(4) and punishable with restriction of liberty or imprisonment for up to one year.
Criminal Defamation of Foreign States and Symbols
Insulting the symbols of foreign countries is a criminal offence under Art. 137(2) if the foreign country in question provides reciprocal protection for Polish symbols. The punishment is a fine, restriction of liberty or imprisonment for up to one year.
Criminal Defamation of the Deceased
Offending the religious feelings of other persons by publicly outraging an object of religious worship or a place dedicated to the public celebration of religious rites is a criminal offence under Art. 196 of the Polish Criminal Code. The penalty is a fine, restriction of liberty or deprivation of liberty for up to two years.
Additionally, under Art. 257, it is an offence to insult a group or particular person on the basis of their religious affiliation. The penalty is imprisonment for up to three years.
The following are official data on criminal convictions from the Polish Ministry of Justice for the year 2013.
• For Art. 212(1) (defamation), there were 20 convictions, resulting in 0 sentences of imprisonment (deprivation of liberty), 3 sentences of restriction of liberty, and 17 criminal fines.
• For Art. 212(2) (defamation committed through the mass media), there were 11 convictions, resulting in 2 suspended prison sentences, 3 sentences of restriction of liberty, and 6 criminal fines.
• For Art. 216(1) (insult), there were 71 convictions, resulting in 3 suspended prison sentences, 23 sentences of restriction of liberty, and 45 criminal fines.
• For Art. 216(2) (insult committed through the mass media), there was 1 conviction resulting in 1 criminal fine.
• For Art. 226(1) (insult of a public official), there were 3,666 convictions, resulting in 220 unconditional prison sentences; 1,261 suspended prison sentences; 1,013 sentences of restriction of liberty; and 1,172 criminal fines.
• For Art. 226(3) (insult of a constitutional authority), there were 2 convictions, resulting in 1 unconditional prison sentence and 1 criminal fine.
• For Art. 137(1) (insulting, destroying, or removing a State flag), there were 28 convictions, resulting in 1 unconditional prison sentence, 2 suspended prison sentences, 5 sentences of restriction of liberty, and 20 criminal fines.
• For Art. 196 (blasphemy), there were 9 convictions, resulting in 5 suspended prison sentences, 3 sentences of restriction of liberty, and 1 criminal fine.
• There were no convictions for Arts. 135(2) (insult of the President) and 133 (insult toward Poland).
Criminal Defamation and Media
• In 2016, the European Court of Human Rights found that the Polish courts had violated Art. 10 of the European Convention on Human Rights in relation to the conviction of Maciej Ziembiński, who at the relevant time had been editor of the newspaper Komu i Czemu. In August 2004, the paper published an article criticising a local proposal for quail farming and referring to unnamed public officials as, i.a., “dull”, “pretentious” and “dim-witted”. The local mayor and several officials filed charges under Art. 212 for defamation via mass media. A court convicted Ziembiński, but for insult via mass media under Art. 216. Ziembiński was fined the equivalent of €2,500, which was later upheld on appeal. The Court stated: “In the Court’s view, without taking a stand on each specific remark made by the applicant, there is no doubt that the remarks in question, used in the particular context of the article, remain within the limits of admissible exaggeration. The domestic courts failed to consider the applicant’s remarks in the context of the article as a whole .”
• In 2006, Polish journalist Andrzej Marek began serving a three-month prison sentence for libel. The conviction related to two articles published in February 2001 in which Marek alleged that an official in the town of Police had, among other things, used blackmail to obtain his position. The conviction had been upheld by Poland’s Supreme Court, but two days into Marek’s prison term the Constitutional Court suspended the ruling and Marek was freed.
• In 2009, Robert Rewiński, a former journalist for Gazeta Wyborcza, was convicted of criminal libel over an article alleging financial malpractice at Fundusz Ochrony Środowiska (the Environmental Conservation Fund) in the western Polish city of Zielona Góra. According to reports, the Zielona Góra District Court accepted that Rewiński’s article concerned a subject of public interest, but judged that he had not reported carefully enough and had illegitimately damaged the subject’s reputation. The court sentenced to him to a fine and payment to a social cause. Prior to his trial, Rewiński had been arrested and held in temporary detention for seven days.
Additionally, at least two persons have been charged in recent years with insulting the Polish president.
• In 2012, a 26-year-old man was sentenced to 15 months of community service and 15 months of “restricted liberty”, in which he was not allowed to change his address without the court’s permission, for having created a website with games such as Komor Killer in which users could fire vegetables at the president, Bronislaw Komorowski. The images of the president on the website had, in the court’s view, clearly sexual, erotic dimension.” In 2013, an appeals court threw out the verdict. Komorowski reportedly did not agree with the original verdict, stating, “If you are in politics, you have to have a thick skin.”
• In the second case, a blogger was charged after referring to the president as a “cwel”, which according to reports is a “a word used to describe criminals (typically sexual), who are fair game for sexual abuse from other inmates.”
Reputation and privacy are protected in Poland by Arts. 23 and 24 of the Civil Code. Art. 23 states that, among other interests, dignity is “protected by civil law, independently of protection under other regulations”.
Art. 24 provides the following:
Art. 24. § 1. Any person whose personal interests are threatened by another person’s actions may demand that the actions be ceased unless they are not unlawful. In the case of infringement he may also demand that the person committing the infringement perform the actions necessary to remove its effects, in particular that the person make a declaration of the appropriate form and substance. On the terms provided for in this Code, he may also demand monetary recompense or that an appropriate amount of money be paid to a specific public cause. § 2. If, as a result of infringement of a personal interest, financial damage is caused, the aggrieved party may demand that the damage be remedied in accordance with general principles. § 3. The above provisions do not prejudice any rights provided by other regulations, in particular by copyright law and the law on inventions.
Courts tasked with considering whether a violation of dignity has occurred may award compensation either to the plaintiff or to a “social purpose” chosen by the plaintiff (according to Civil Code Art. 448). The court may also choose not to award any compensation at all. In deciding on the amount of compensation, courts must take into account all the factual circumstanes of the case, including the guilt of the person being sued and the type of personal interest affected (see Supreme Court judgment of 19 April 2006, case file II PK 245/05). The Supreme Court has found that the goal of financial copmensation is to provide a remedy to the plaintiff. Compensation also plays a preventative role in terms of deterring similar violations in the future (see Supreme Court judgment of 24 January 2008, case file I CSK 319/07).
Polish courts in recent years appear to have increasingly ordered alternative remedies to compensation, particularly the publication of an apology. Nevertheless, the publication of an apology can be costly and burdensome, especially when the apology is required to be published for several days on the front page, as a Warsaw Regional Court judgment from 25 August 2016 illustrated. In many cases, the costs of publishing an apology may be much higher than compensation. Courts also tend to order that media outlets delete parts of an offending article or even entire articles from online news platforms. This pracice is not in conformity with European Court of Human Rights (ECtHR) judgments (see, e.g., Smolczewski and Węgrzynowski v. Poland, application no. 33846/07).
Generally, courts will order more generous compensation to be paid by tabloids if the reputation of a public figure has been violated. In a judgment from October 2011, a court awarded a Polish millionaire and his wife 200,000 PLN (approx. €50,000), and stated that the plaintiffs’ prestige justified the large sum. The court stressed that the higher a plaintiff’s prestige, the higher the compensation. On the other hand, tabloids will be ordered to pay less if the article in question concerned a private person not known to the general public, or if the tabloid interfered with the reputation of a politician.
Between 2010 to 2012, there was a general trend among courts to award high compensation in defamation cases, especially if the plaintiff was a “famous” person and the violation was committed by a tabloid. Today, compensation amounting to €50,000 is relatively rare.
In cases, involving local press, compensation awarded is much smaller, and usually would not exceed the equivalent of €5,000. In many cases, courts conside the publication of an apology satisfactory and do not order financial compensation. A similar trend can be seen when the impugned media outlet is a serious publication, especially when the plaintiff is a politician.
It should be noted that one of the reasons that compensation in civil defamation cases in Poland is not particularly high is that criminal defamation laws still exist. Often, civil proceedings are used as an additional tool after the media defendant’s guilt has been established in criminal proceedings.
To analyse the amounts of civil compensation awarded by Polish courts, 19 civil defamation cases involving the media between 2012 and 2016 considered representative of current trends were collected and analysed as part of an IPI-led research project. Financial compensation was awarded at final judgment in 12 of these cases with an average award of approximately €12,800 (the publication of an apology was also ordered in several of these cases, and compensation was also awarded in a 13th case that was not yet final at the time of research). An apology was ordered as the sole remedy in three of the remaining cases; and an apology plus the deletion of offending images in a fourth. In two cases, an appeals court found no violation of reputation upon review.
The highest compensation award among the 19 cases reviewed was the equivalent of €40,000, which a court ordered the tabloid Super Express to pay to the children of a woman who committed suicide in detention after she was alleged to have ordered the murder of her husband. Compensation of €25,000 or more was ordered in four further cases, three of which involved tabloid newspapers and a fourth that involved a book written by a filmmaker who claimed to have had sexual relations with an actress. Compensation in cases involving local newspapers, on the other hand, tended to be much lower.
Information on civil defamation law and compensation in Poland was compiled by Dominika Bychawska-Siniarska, human rights lawyer at the Warsaw-basedd Helsinki Foundation for Human Rights.
Recent Legal Changes
As part of changes to the Polish Criminal Code in 2010, the sanctions for criminal defamation were reduced. Deprivation of liberty is now only possible in case of defamation or insult through mass media (Arts. 212 and 216). Art. 212 is seen as a particular problem in Poland. In 2011, the Helsinki Foundation for Human Rights and the Polish Chamber of Press Publishers launched a campaign to repeal the provision from the Criminal Code. The head of the Chamber stated that there had been a rise in convictions under Art. 212, against both journalists and others.
In 2006 the Polish Constitutional Court ruled that Art. 212 was compatible with the Polish Constitution .
In November 2012 the Polish Ombudsman, Prof. Irena Lipowicz, submitted an application to the Polish Constitutional Court requesting an investigation “into the compatibility of Art. 212, Sec. 2 of the Polish Criminal Code – namely, the phrase ‘or imprisonment up to one year’ – with provisions in the Polish Constitution and Art. 10 of the European Convention on Human Rights”. In June 2013, the Constitutional Court dismissed the application by stating that its 2006 ruling had already settled the matter .
Notes and Acknowledgements
Information for Poland was originally collected by IPI as part of the “Out of Balance” report, published in January 2015 with support from the European Commission and incorporating research contributed by Center for Media, Data and Society at Central European University in Budapest and by the SHARE Foundation in Belgrade. This entry was later expanded and updated by IPI as part of a study commissioned by the Office of the Representative on Freedom of the Media of the Organization for Security and Co-operation in Europe (OSCE).
A fully footnoted version of this entry is available in the OSCE study. This entry was last updated in March 2017.
The information contained in this database is for informational and advocacy purposes only. If you are a journalist facing a defamation claim, you should seek legal advice from a qualified attorney. However, if you are unable to find such an attorney, IPI may be able to assist you in doing so. Please contact us at info(at)ipi.media.