Not long after the European Commission published the drafts of the Digital Services Act (DSA) and Digital Markets Act (DMA), the Polish government decided to take its own swing at global social media platforms.
The project is entitled “Protection of freedom of speech on internet social media services” and, according to the officials, will be implemented by the Sejm (Parliament) in the following weeks. In what may look like a paradox, given the loud and clear anti-EU sentiment of the ruling Law and Justice (PiS) party, the proposed law does not ostensibly differ from the framework of the DSA.
Despite many similarities – the political motivations as well as legal toolset – its implementation will undoubtedly bring results that profoundly differ from the European establishment’s intentions.
Hardly a surprise
Minister of Justice Zbigniew Ziobro presented the regulation, which comes as a reaction to fears expressed by the right after the streak of progressive decisions by Facebook and Twitter regarding the freedom of expression on the web. The process has its roots in policy changes of the global tech companies, but the de-platforming of antiprogressive social media posts and users has already reached Poland. And it arrived in style.
In November 2020, Facebook deleted the fan page of Janusz Korwin-Mikke – a paleoconservative, buffoonish provocateur, a former Member of the European Parliament and current representative of the far-right opposition party in the Sejm.
Although hardly a surprise – Korwin-Mikke’s use of hateful and derogatory language makes Donald Trump look like a mature and responsible statesman – Facebook’s action was a grave one, and suddenly the most popular politician’s account in Poland was no more.
The permanent ban of social media profiles imposed on Donald Trump after the Capitol riots seemed to be a final straw: a look into the future, in which the far-right flavour of populist politics is effectively forbidden. There is also the short term gain.
Modern right-wingers are very sensitive to the phenomenon of so-called ‘cancel culture’, usually rallying around figures who have been in one way or another blocked from full access to social media platforms and major media. PiS claiming to be a defender of the ‘persecuted conservatives’ may score some points.
Many willing ears
Ironically, the Polish right historically has not been, to put it mildly, a huge fan of uncensored speech and to this day often organises campaigns against ‘polonophobes’ or ‘blasphemers’ from the civic society, the media or academia. Nevertheless, the recent rants coming from the Anglosaxon conservative counterparts have easily found many willing ears. That sentiment has even resulted in a PiS-affiliated right-wing newspaper Gazeta Polska to fund their own version of Facebook.
Alciblca, as it is called, quickly became an object of ridicule and massive troll attacks that almost immediately lead its administrators to suspend the option to comment on other people’s posts altogether.
Since creating a successful competitor of Facebook and Twitter seems far fetched even for the most devoted PiS hardliners, the ruling party turned to legislative means. The time seems right, given that the debate on Big Tech regulations reached a critical point in Europe.
As already mentioned, the new proposal bears strong similarities with the DSA. It obliges major social media platforms to standardise, monitor and report complaints against its decisions regarding the removal of user-generated content. The platforms will also have to assign legal representatives, whose role will be to participate in administrative and juridical proceedings and collaborate with the public officials regarding users’ complaints.
The main novelty introduced by the draft comes with a new institution established to supervise the platforms. If passed, the everyday disputes over what can and cannot be posted on social media would be decided by the so-called “Freedom of Speech Council” [pol. Rada Wolności Słowa].
The council’s board members would be chosen by the Sejm for a six-year term from candidates with a legal, linguistic, IT or educational background. They would wield power over the final judgments regarding individual cases but the administrative proceedings would be delegated to the Office of Electronic Communications – a governmental body whose head is appointed by both the prime minister and the Polish parliament.
In concrete terms, the Council would wield far from symbolic power over the social media platforms. According to the draft, the maximum fine that the body could issue for a freedom of speech violation amounts to about 12 million euros (50 million zlotys). It is a sum that makes a difference in spreadsheets of companies even as big as Facebook, which in 2020 made a total revenue of almost 520 million zlotys in Poland alone.
The Council’s verdict will be final, but both the platforms and the users will be able to appeal to the court. Here comes another important detail: it will be the administrative and not the civil judiciary that will eventually decide upon individual cases.
Thus, many judges accustomed to working on usually highly formalised and procedural cases will be exploring a terra incognita of freedom of speech regulations that traditionally belonged to the civil branch of law.
One major but
The Council would not protect acts of speech that, according to the Polish penal code, constitute a crime. On the contrary, the Prosecutor’s Office would be allowed to request and obtain information on the user’s identity of the alleged crime or misdemeanour. That includes a whole list of ‘no brainer’ acts such as warmongering, incitement of violence against public institutions and officials, treason, espionage, human trafficking or stalking.
Yet, the list comprises other more controversial and disputable offences: the defamation of Poland or the Polish nation, regional secessionism and desecration of the national anthem or religious symbols.
The provision, somewhat hidden within the procedural parts of the regulation, might be the new law’s gravest consequence. Social media platforms are already obliged to collaborate with the Polish authorities, but so far, the platforms have tried to make the process, at least superficially, thorough and alike to a traditional due process.
If passed, the legal ground for almost automatic cooperation in cases of potential crimes as serious as posting a political meme, critical cartoon or a fiery online polemic.
Sounds absurd? Unfortunately, not in the case of contemporary Poland, where activists are right now being prosecuted for precisely that.
The fact that Zbigniew Ziobro simultaneously is a proponent of a new bill, heads the Polish Prosecutor’s Office and supervises the judiciary is a clear indicator of what we can expect. In light of this, naming the new body the so-called ‘Freedom of Speech Council’ bears an uncanny and Orwellian resemblance.
Law and Justice’s European game plan
The new regulation needs to be analysed in light of other traditional and digital media policies of the Law and Justice party. Shortly before the project regarding freedom of speech on social media, state-owned Orlen acquired Polska Press local media group.
Several days later, the public debate centred around the proposal for a new advertising tax, which was yet another step towards securing domination over the Polish media sphere.
What happens if the law is passed? The Polish government will be in possession of new, effective tools to shape the playing field on which the democratic debate takes place. They win in two key aspects.
Firstly, by protecting their sympathisers from being blocked from using the most popular political communication platforms. Secondly, by having direct and non-negotiable access to the identity and personal data of its critics.
What is somewhat problematic is that the potential future suppression of non-right wing social media users would almost certainly happen not in the letter but in the spirit of the law.
Given that the regulation will eventually become the law of the land, PiS could gag and persecute opposition without directly breaking any Polish or even EU-level regulations. This is a challenge not only to the idea of shared European values but also to the very core of the philosophy behind European integration, which has been dominating the continent for the last several decades.
In the old school interpretation, the European treaties do not allow the EU institutions to regulate matters related to the scope and application of freedom of speech. However, according to a different international treaty, the European Convention on Human Rights, such provisions are binding to Poland.
What is more, over the last decade, EU officials have ostensibly been moving towards a model in which basic human and civic rights are not only essential, but should also be binding and, if possible, directly applicable.
Article 11 of the EU Charter of Fundamental Rights states that: “Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers.”
There’s nonetheless a catch. Back in 2007, when negotiations for the Lisbon Treaty were taking place, the United Kingdom and Poland secured an exemption from the general applicability of the Charter.
This exemption resulted in signing a protocol that states that the “Charter does not extend the ability of the Court of Justice of the European Union, or any court or tribunal of Poland or of the United Kingdom, to find that the laws, regulations or administrative provisions, practices or actions of Poland or of the United Kingdom are inconsistent with the fundamental rights, freedoms and principles that it reaffirms.”
The legal effects of the protocol are the subject of a heated juridical and international debate to this day, with PiS firmly holding onto a position of Polish exceptionalism. However, after Brexit it seems pretty clear that at least according to the Commission’s political plans, the Charter is here to stay for good and for all member states – including Poland.
Safeguarding political freedoms
It is also not clear how the new legislation will affect the implementation of the Democratic Action Plan, an EU-level policy introduced in order to safeguard the political freedoms of Europeans. The plan was created as a response to digital disinformation, election rigging and traditional and online media censorship.
The plan also wants to target hate speech, a term often used by the progressives and liberals to mark not only direct threats and acts of aggression, but also discriminatory slurs, derogatory or even insensitive language used towards minorities.
It is virtually impossible to imagine that the PiS government would actually want to bring about that kind of change to strengthen democratic security. On the contrary, the same legal toolset will probably be used to protect the right to say and write the very kind of words the EU wishes to eradicate.
Unfortunately, the available documentation on its details do not provide direct answers to the questions that would arise under Polish legislation on protecting freedom of speech on internet social media services. From the point of view of those opposing PiS, the most optimistic perspective is that any decision of the Council’s could eventually be taken to the European Court of Justice.
Needless to say, it seems like a typical ‘too little, too late’ solution, particularly given that the speed of politics in the digital era is ever accelerating.
The shape of social media to come
Who, or what, could possibly thwart the Law and Justice party’s agenda of remaking the rules on what constitutes acceptable opinions on social media? As usual, the answer boils down to two principle actors, namely the United States and big business.
After an unambiguous comment by Ned Price, the US spokesperson for the Department of State, it seems that the government’s plans to enact a controversial tax on advertising, put forward by the PiS at the beginning of February, might be indefinitely suspended, or at least significantly softened. That may also happen to be true in the case of the freedom of speech on social media bill, although in this case the rationale for media outlets and foreign governments to intervene, or even show support for the government’s critics, is far smaller.
There are no direct major beneficiaries – as is the case with the media tax – of the cancellation of the government’s plan to reregulate the scope of freedom of speech on social media. Existing companies and media outlets already have lawyers and policies to protect themselves from publishing suable content. Individual people, in most cases, do not have such means. Civic activists and politicians, to a lesser extent, would be hit the hardest if the new law comes to pass.
Then there is also the possibility of the whole problem being managed technocratically from the very top of the command chain. Mark Zuckerberg announced late in 2020 that he is considering a move to depoliticise the platform, which would basically mean that Facebook’s algorithms would make political content pop up in our feeds less frequently.
While that would also be a form of censorship, it could be fairer due to the lack of an ideological bias. It would most certainly start a revolution of unintended consequences, reshaping the current digital media political sphere.
In any case, apart from the United States, it is the large American social media platforms themselves that will have some, if any, power over the final reshaping of the contemporary public discourse on Polish politics.
It should come as a sobering reminder, first and foremost to the European Institutions, that in the digital era inadequate regulations are almost as bad as a complete lack thereof.