By EDRi

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Deutsch: [Polnischer Oberster Gerichtshof: Elektronische Presse muss registriert werden | http://www.unwatched.org/node/2499]

On 15 December 2010, in a cassation proceeding, the Polish Supreme Court
decided that all electronic press in Poland must be registered. This
decision goes along the line traced by its 2007 decision of the same
substance, followed by a corresponding press law amendment proposal by the
Ministry of Culture and National Heritage, including obligatory registration
of all “electronic press”, both of which were strongly criticized by the
Polish legal doctrine and internet community.

Recently, it seemed that things were improving – the 2010
Ministry of Culture’s proposition of press law amendment oozed hope, as it
included a voluntary registration of “electronic media” (giving those
registering the privileges foreseen by the press law such as journalistic
secrecy), excluding from its scope the webpages of personal character, in
particular blogs. This recent Supreme Court decision however reverses the
positive course of the debate and takes Poland three years back in the
discussion on free speech on-line. It must be emphasized that such a Supreme
Court decision is literally contrary to Polish press law regulation, as it
is based on extensive interpretation of criminal press law liability.

The Polish Press Law Act from 26 January 1984 defines “press” as “any
periodic publications which do not constitute a closed, uniform entity,
appearing no less than once a year, having a regular title or name, current
number and date, and in particular: journals, periodicals, news services,
regular fax transmissions, bulletins, radio and television programs and film
chronicles;” but also “any means of mass media, existing or appearing as a
result of technical progress, including broadcasting stations, public
television and radio address systems, that broadcast publications
periodically as print, picture, sound or using any other broadcasting
technique”(Article 7 par. 2 pt. 1). Although arguable, one might consider
some examples of electronic publications as constituting press (rather as a
particular “mean of mass media”, then a “periodic publication” of a “closed
form” with a “current number”). Art. 20 of the Press Law Act requires the
registration not of press as such, but only for journals and periodicals.
Such registration should be done with a district court at the place of the
domicile of the publisher.

The Act defines “journals” (“dzienniki”) as well as “periodicals”
(“czasopisma”) in art. 7 par. 2 items 2 and 3. There, a journal is
defined as “a periodic print or a transmission of sound or sound and vision
of general information, appearing no less than once a week”, (item 2), while
“a periodical is a periodic print appearing no more than once a week and no
less than once a year; the regulation may also apply appropriately to
transmissions of sound or sound and vision other than described in par. 2.”
(item 3). According to Press Law Article 45, publishing a journal or a
periodical without registration may result in a fine or a criminal sentence
of up to 12 months of public service.

It ought to be emphasized that the sentence of the 15 December 2010 decision
sets the administrator of the subject web-page (gazetabytowska.pl) free. The
Supreme Court upholds the decision of the Slupsk district court that did
find the plaintiff guilty of infringing Press Law Article 45, that is
publishing (on-line) a journal or a periodical without registration, however
acquitted him due to the minimal public menace of the offence. The Supreme
Court decision upholds this sentence, which means that it finds that
failure to register an electronic publication constitutes a crime. In an
oral statement, the reporting judge commented that the Court did not aim at
registering the entire content of the Internet but wished for the
obligation of registering press foreseen in Article 7 to be properly obeyed.

It ought to be emphasized that as cited above, Article 7 does not include
an obligation to register press as such – this obligation is foreseen in
Article 20 and concerns only journals and periodicals, meaning “periodic
print or a transmission of sound or sound and vision”, so a rare
characteristic for electronic media which are available mainly in written,
electronic form.

This decision goes along the line of the 2007 “Szyciepoprzemysku” decision,
concerning another electronic publication available solely on-line. The
Supreme Court, in its decision from 26 July 2007 (IV KK 174/07) found that
the ” deliberations on the fact that, in the light of law, publishing
press in electronic form does not require registration are wrong and
contrary to entrenched doctrine opinions. (…) It is clear, that the
Internet may not be registered (…), just like paper. Paper as such does
not have to be registered, however the printed paper must be registered,
what is more – not the very paper itself, but rather the activity of
printing on it and publishing it in the form of a journal or periodical –
meaning press.” It went on to say, that “the person distributing without
registration in the suitable district court, a journal or a periodical on
the Internet, regardless whether such a distribution is accompanied by a
transmission in print, next to its electronic form, or whether it exists
solely in the electronic form on the Internet, suffices to recognize the
crime described in art 45 of Press Law as having been committed.”

The core problem with the interpretation presented by the Supreme Court lies
in the wide responsibility of the web-publisher that in this case is the
page-administrator, who, according to the Supreme Court Decision, should
be saddled with all the responsibilities of an Editor in Chief of a
traditional newspaper. The Polish Press Law foresees this responsibility as
encompassing the responsibility for the press material published in the
periodical or journal under his authority. Furthermore, there is no legal
rule allowing for a clear distinction between the web-pages that require
registration and those that do not. Leaving this difficult analysis solely
to web-page administrators seems a task far too heavy for them to shoulder.

What is more, such an obligation, and – following the suggestion of the
Supreme Court – the punishment of the ones who do not fulfil it should be
considered a breach of one of the basic rules of criminal law: nullum crimen
sine lege certa et stricta (this argument was also raised by the defendant
accused in the “Gazeta Bytowska” case and by the Helsinki
Federation). There is no “clear” and “certain” rule of law that tells the
web-administrators of a certain category of web-pages that it is their duty
to register their webpage (a webpage of a certain sort, as it is clear that
not all web-pages may be considered journals or periodicals). Interpreting
that rule out of the existing regulations is an expanding interpretation of
a criminal norm that is inadmissible.

One must not forget that in the Polish legal system, the Supreme Court
Decision is binding solely in the particular case. Nonetheless the role
that the legal interpretations made by the highest legal instance plays in
the further application of legal norms must not be under appreciated.

The decision will not be published, as according to Polish procedural
regulations this kind of decision (a provisional ruling “postanowienie”)
need not be done in writing, when the Court finds the claim “clearly
unjustified” and refers to it in an oral statement during a session (such
as this case ).

Polish Helsinki Foundation statement on the decision (only in Polish, 15.12.2010)
http://www.hfhrpol.waw.pl/obserwatorium/index.php?option=com_content&view=article&id=3406:sn-rejestracja-prasy-internetowej-obowizkowa&catid=40:zkraju&Itemid=34

J. Kulesza, Which Legal Standards Should Apply To Web-logs? The present
legal position of Internet journals in the European jurisprudence in the
light of the European Parliament Committee’s on Culture and Education report
and Polish Supreme Court decision, Lex Electronica, 2009/3(13)
http://www.lex-electronica.org/docs/articles_221.pdf

Supreme Court: online newspapers have to register with the court as well as
paper ones (only in Polish, 15.12.2010)
http://prawo.gazetaprawna.pl/artykuly/472191,sn_gazety_internetowe_trzeba_rejestrowac_w_sadzie_tak_samo_jak_papierowe.htm

(Contribution by Joanna Kulesza, University of Lodz, Poland)