On 11 February 2019, the Office of the Commissioner for Human Rights received a written notice of a lawsuit filed by Telewizja Polska S.A. against Adam Bodnar as a private individual. The lawsuit concerns violation of TVP’s personality rights as a result of the statement made by Commissioner for Human Rights Adam Bodnar on 16 January 2019 on the Onet.pl web portal with regard to the murder of late mayor of Gdańsk Paweł Adamowicz.
In the notice of the lawsuit, all the allegations contained in the formerly received pre-litigation statement of claims are repeated. The plaintiff’s claims are also the same: publication of an apology, in the form of a paid advertisement placed on the main page of the Onet.pl web portal; a donation in the amount of 25,000 PLN for the Great Orchestra of Christmas Charity foundation, and the reimbursement of the court fees.
Adam Bodnar referred to those allegations and precisely explained his position on them in a letter of 4 February 2019, addressed to TVP S.A. He indicated, among others, that there was a misunderstanding of the CHR’s role, that his words were misinterpreted, and that there was an unacceptable attempt to exert pressure on the body established under the Constitution.
TVP S.A. did not wait for those explanations and did not consider them at all, but immediately took the case to court, as emphasized in the lawsuit. It was also stressed that the allegations relate to Adam Bodnar as a private individual, despite the fact that Onet.pl held an interview with the current Commissioner for Human Rights.
The Commissioner's duty, according to the Constitution of the Republic of Poland, is to intervene in any case of violation of constitutionally protected rights and freedoms. This duty covers both the provision of information on actions taken, and the information to the society of problems that need to be analysed from the point of view of compliance with the Constitution. The CHR’s statement in question was formulated as part of the fulfilment of these duties.
According to Article 1(3) of the Act of 15 July 1987 on the Commissioner for Human Rights, in cases concerning the protection of human and civil rights and freedoms the Commissioner is required to examine whether, as a result of action or omission of any bodies, organizations or institutions required to observe and ensure those rights and freedoms, no violation of the law or of the principles of social interaction and justice has taken place. This gives grounds also for the monitoring of the public television.
The Commissioner expresses his positions by reacting to current events, but also needs to take preventive measures against negative or even tragic situations in the future. Such measures are carried out not only by broadly understood education, but also by making public statements.
In addition to ex-officio activities concerning the public media, the Commissioner takes action as a result of a number of complaints received from citizens. An example can be the “Call to commemorate Paweł Adamowicz”, that was sent by mayors of cities-members of the Association of Polish Cities to the Prime Minister, the President of the Supreme Audit Office and the CHR. It requested, among others, to take explanatory activities to verify whether the public broadcaster’s activities concerning late Paweł Adamowicz were carried out according to the principles of fairness, due diligence and reliability, required by the ethical principles of journalism.
The position taken by the TVP may be a result of incomplete analysis and misinterpretation of the CHR’s words. A correctly conducted analysis should lead to the conclusion that the CHR did not blame Telewizja Polska for the actions of Stefan W. In his answers, Adam Bodnar stressed several times that he did not know what motives governed the perpetrator’s actions, and that the CHR was unable to determine whether there was a connection between TVP's programmes about late Paweł Adamowicz and the motives of the perpetrator. The Commissioner also clearly stated that this should be carefully examined and that it may be assessed only by a court.
The questioned statement did not focus on making judgments about any circumstances of the case, but on highlighting the problem that needs to be examined and solved in the context of the constitutionally guaranteed right to access to information. Initial information coming from the Prison Service, suggesting that prisoners, including Stefan W., had no access to TVP Info, was questioned as a result of journalists' findings (demaskator24.pl web portal). It is therefore of particular importance to explain this aspect that was publicly noticed. The mention about it was motivated by the concern about the constitutionally guaranteed freedoms of access to information and of the world view.
Moreover, one cannot agree with the opinion that Telewizja Polska S.A.’s personality rights have been violated by the statement that the way in which the public television spoke about late mayor Adamowicz may be considered as hate speech. The number and, in particular, the tone of the materials broadcasted by the public television about him could have caused doubts as to their exactness. Furthermore, the CHR’s statement was not definite in nature. It rather indicated that the suggestions about the information on late mayor Adamowicz being imprecise should be carefully examined.
According to Article 21 of the Act of 29 December 1992 on Radio and Television Broadcasting, Public television shall carry out their public mission by providing, on terms laid down in this Act, the entire society and its individual parts with diversified programme services and other services in the fields of information, journalism, culture, entertainment, education and sports, which shall be pluralistic, impartial, well balanced, independent and innovative in nature, and characterized by high quality and integrity of broadcasted content. The situation in the TVP is and must be a subject of public interest and public debate and, if so justified, also criticism. Only such an approach can strengthen the public mission implemented by the TVP, and bring a positive effect for the whole society.
Therefore, the public television should be aware that it may be subject to criticism by citizens and bodies such as the Commissioner for Human Rights, especially when there are numerous voices of concern and indignation.
According to the jurisprudence of the European Court of Human Rights, public sector entities should display greater tolerance for critical statements and assessments concerning their actions.
In its judgment of 5 July 2016 (complaint No. 26115/10, Jacek Kurski v. Poland), the ECHR commented on the meaning of a statement made by a politician who assessed the behaviour of one of press publishers. The court considered that “his statement was a part of an ongoing debate on matters of public interest” and “ raised a matter of public concern, that is, the independence of the media in a democratic society”. Referring to perhaps excessively strong words used by the politician, the court concluded that “while the applicant had recourse to a certain degree of hyperbole in his statements, at the same time it does not seem that he resorted to gratuitously offensive and inappropriate language or went beyond a generally acceptable degree of exaggeration”. As a result, the ECHR agreed with the complainant and found that Article 10 of the European Convention on Human Rights had been violated.
Therefore, the European Court of Human Rights’ jurisprudence provides extensive guarantees of the freedom of speech in discussions on matters of public interest and debate. In view of the existing doubts about the activities of TVP, the Commissioner for Human Rights not only has the right but also the obligation to take part in such a debate.
Given that hate speech has recently become a major problem, the Commissioner, for a long time already, has been conducting numerous activities aimed at combating this phenomenon on the Internet and in the public life. Of key importance here are the media that participate in shaping the opinions of citizens and that influences social relations by the language they use.
The role of the Commissioner is to react to all risks of hate speech spreading, in particular if they relate to any questioned attitudes of the public television. The CHR’s statements made within the role held were solely a result of the concern for the common good, i.e. the public television that should develop the best attitudes in the society and comply with the highest standards.
In the belief that the claims of Telewizja Polska SA are fully ungrounded, which is a result of the incomplete analysis of the words used and of their over-interpretation, the Commissioner for Human Rights is forced to express his concern with the possibility that the lawsuit filed by the TVP can be understood as an attempt to exert pressure on the body established under the Constitution. It may also be an attempt to put an end to the debate on the exactness of media materials and the pluralism of opinions presented by the public broadcaster. Such actions may not be considered in line with the principles of a democratic state ruled by law.
Commissioner for Human Rights Adam Bodnar spoke about the need to combat hate speech. He referred to the murder of mayor of Gdańsk Paweł Adamowicz. Among others, he pointed to cases of discontinuance of lawsuits concerning hate speech. He referred to the murder of Jo Cox, a member of the House of Commons, killed in 2016, after whose death a number of measures were taken in support of social dialogue. He also mentioned the Human Duties Charter, a document that defines our obligations towards the community.
Andrzej Stankiewicz: Why has Paweł Adamowicz been killed?
Adam Bodnar: It would be quite irresponsible to attempt to conduct such an analysis without questioning the killer, without any examination of his soundness of mind by experts.
AS: But there are suppositions on both sides.
AB: I am aware of this. On Sunday evening, when I was following the debate on Twitter, some people were already making judgments.
AS: Some people, the current government’s supporters say that it is Owsiak who should be blamed because he failed to organize the concert properly. Others say that PIS should be blamed because they organized a campaign against Adamowicz in the preceding months.
AB – Let’s discuss those arguments [concerning the local-level organization of the Orchestra's events]. Questions about safety of mass gatherings cannot be avoided.
AS: So let’s look at the second opinion: the current government’s supporters should be blamed because they criticized Paweł Adamowicz. Can such allegations be made?
AB: I think we have to be aware of the political climate and level of tolerance for hate speech in Poland, of the role of such intense propaganda targeted also at various persons who hold public functions.
AS: Criticizing late Mr Adamowicz is, however, something different than making the allegations that it was PIS who started to use hate speech. Would you make such an accusation?
AB: Yes, I would say this was PIS. Look, this is a specification of actions taken by me with regard to hate speech .... [The CHR shows a report on his activities, that is available HERE]
AS: I would like to talk about hate speech, but about this particular example.
AB: Had this specific example taken place or not, we still have the unresolved problem with combating hate speech, we have the unsolved problem with how it should be counteracted effectively.
AS: Well, but could this hate speech, even hate speech towards Adamowicz, have really led to a madman, or someone committing a premeditated crime, selecting Adamowicz as his specific target?
AB: I am not excluding this possibility. Yet, I am not able to conclude this for certain, because it is only a court and court experts who can do this as a result of court proceedings. But I am aware of various situations in public, that concerned, among others, Paweł Adamowicz and during which he was, in a way, a target of various not very refined attacks ...
AS: Well, let me then ask precisely. Can the way in which the public television referred to Paweł Adamowicz in recent months have contributed to what has happened?. Do you blame them? Onet journalist Janusz Schwertner has conducted an analysis which you can find it on our website. Janusz has written as follows: reporters presented Adamowicz as a property fraudster co-responsible for the AmberGold case, a politician fighting against what is Polish, one who promoted Nazism, communism… There was also some environmental disaster mentioned. Do you believe that TVP, speaking about Adamowicz in this way, has contributed to what has happened?
AB: Again, I would have to be inside the head of Mr Stefan in order to...
AS: So, let’s rephrase it: what they did, was it hate speech against Adamowicz?
AB: It can be, in my opinion it can be considered as hate speech relating to a specific politician. What’s more, we have to pay attention to the types, and I feel more competent here, to the types of media Mr. Stefan could potentially have access to. If he was in detention, he…
AS: Well, he was in prison.
AB Yes, until December. And he only used the media that form so-called terrestrial television, i.e. that are not cable TV. So he had no access to the internet, no access to coded television, because only few prisoners have access to it ...
AS: Well, but what do you mean by saying that he had access only to public television? There are other channels offered by terrestrial TV too?
AB: Well, but TVP INFO is a channel which is broadcasted 24 hours a day. The other television channels are there too, but for how long? Half an hour a day.
AS: So you are saying that the only news channel that works 24 hours a day is TVP INFO. Indeed, other channels that are there, that is TVN and Polsat, are, well, general channels where news broadcasts take thirty minutes a day. Are you suggesting that he was there, imprisoned, and his frustration was building up because he was watching TVP INFO in his cell?
AB: I don’t know this, whether it was like that. This would have to be analysed. But in my opinion, this is one of those aspects of the case that needs to be explained. What consequences can be brought about by the lack of access to pluralism of opinions, and whether or not they could have influenced his behaviour. I do not exclude this hypothesis.
AS: Should Jacek Kurski be dismissed from Telewizja Polska? Looking at all this, at all the other situations taking place in the public television?
AB: It is not my role as Commissioner to make political assessments about who should be ...
AS: But about the content-related assessment of what you can see on TV.
AB: I can only say that yesterday I signed and sent to the National Broadcasting Council a statement concerning the show, the puppets of Mrs. Piela. I think it was an outrageous show.
AS: On Thursday, before the Great Orchestra, there were anti-Semitic elements, but also elements that were defamatory in relation to Lech Kaczyński ...
AB: Well, also elements defamatory in relation to Hanna Gronkiewicz-Waltz and Jurek Owsiak. Because showing them packing money into their bags is nothing else than an attempt to defame them, than tell people "look and see what's happening with this money" ...
AS: Have you watched the already famous series of materials, those broadcasted on 14.01 on Wiadomości, after the attack on Adamowicz? The materials suggesting that it was the formerly ruling party, that is Platforma, who were responsible for hate speech?
AB: I have watched those materials. Let me say: I do not like such messages, ones that place emphasis only on what one of the sides is saying. Again: it is the duty of the public television to provide reliable information on publicly important matter , and not to use the television for political propaganda mechanisms.
However, we have this underlying problem, that it is the National Media Council that takes decisions on who works for the public television. There has been a judgment of the Constitutional Tribunal of 13.12.2016, and it has not been enforced. It has been fully ignored, assuming that things will remain the same old way, that the ruling party will have full control over what is happening in the public TV. So these are probably the consequences of the TV following political instructions.
AS: I want to ask you about hate speech. What can we do about it? Nearly three years ago you said: "Hate speech is a phenomenon covered by provisions of the Polish Penal Code. This was… The starting point was the code of conduct drawn up by the European Commission. A lot of time has passed. Probably law enforcement authorities do not approach hate speech with sufficient attention. We have regulations, the Penal Code applies, so why are there no measures? Why, as Jarek Kuźniar mentioned, did Minister Brudziński take steps against those who incite hatred only after the tragedy?
AB: Precisely, whenever in the public debate any social problem is mentioned, the first suggestion is: “we need to adopt an act of Parliament”.
AS: "We need to change the regulations".
AB: Such an appeal was voiced yesterday too. And rightly so. Of course, the provisions of the Penal Code should be made more detailed when it comes to some aspects of fighting against hate speech. But this is not the main problem.
The main one is that the fight will not be effective if there is no support on the side of prosecutor offices.
AS: Is there no support from them?
AB: In the cases I work on, to which I try to react, proceedings are usually discontinued, or they are very lengthy. The way it looks in practice is that when we win some case, it is an occasion to celebrate...
AS: But why do prosecutors not react? Is it too difficult for them, or have they been instructed not to react?
AB. In my opinion, the latter statement is true.
AS: The one that Zbigniew Ziobro does not want to prosecute hate speech?
AB: I think that in cases that concerned representatives of extreme right-wing groups ...
AS: Are you speaking about, for instance, the proceedings concerning Jacek Międlar?
AB: Or Młodzież Wszechpolska [All-Poland Youth], a famous case in which the proceedings were discontinued.
AS: ... or obituaries concerning presidents ...
AB: ... or death certificates.
AS: But they wrote about political reasons
AB: But there was a full justification, there was a photo signed "on behalf of the Polish nation", and the name of the organization. For a year and a half, mayor Adamowicz sought to continue the case, but it was discontinued. And the case of the march in Hajnówka, that commemorated Bury but was in fact against the Belarusian minority. First, the case was sent from one institution, and one unit of the prosecutor’s office, to another, as everyone wanted to get rid of it. Eventually, the proceeding was started and then discontinued. The court annulled the prosecutor’s decision and ordered reconsideration. But I don’t have much hope for the case ...
AS: But what are the lessons learnt? What would you suggest? Changes in the law? I follow your statements and I know you believe legislative changes may positively impact the public debate in Poland. You are an optimist, I am a pessimist about it, so try to convince me.
AB: First, as regards hate speech, prosecutor’s offices should protect the rule of law. But to do so, one must be objective. And if one is the minister of justice and the prosecutor general, that is when one holds political functions, this is difficult to ...
AS: You have just confirmed my point: Ziobro holds both of the functions.
AB: Well, maybe then we should speak about it openly, we should realize that in many situations prosecutor’s offices behave in political ways rather than independently.
AS: Well, but…
AB: But the positive thing is this takes us back to history, to the case that took place in the UK: the murder of Jo Cox, a Labour Party MP who was murdered by a person connected with the British extremist right-wing option. The killer claimed he did it for the UK, he was openly saying he was a supporter of the UK leaving the European Union.
And what happened in the UK later? First of all, there were many statements and words from the opposition party, concerning Jo Cox and strengthening the message that she was murdered as a person important for the democratic community. That this was an attack against the entire democratic community.
Three days after her death, Prime Minister David Cameron spoke beautifully about Jo Cox, although he is a conservative. This was the main thing. I still believe this is possible in Polish politics too. We will see what happens in the Parliament today.
AS: Today in the Sejm, there is a debate on the subject.
AB: Secondly, this resulted in interesting social initiatives. In particular, the action called Great Getting Together was developed.
AS: [translates the action’s name into Polish].
AB: Yes, it was initiated by Jo Cox’s friends and family. They encouraged NGOs and politicians of various options to provide support. In total, more than one hundred NGOs got engaged. Across the United Kingdom, one year later various actions took place, where people just wanted to be together. They wanted ... I don’t know ... eat donuts, or, to use the example of Paweł Adamowicz, bake a cake, meet with other residents from the street, hold a conference, session, discussion or picnic. Various forms, those that connect people, and now also commemorate her.
This was the second thing. And the third one, takes me back to Paweł Adamowicz. There is a document entitled the Human Duties Charter. It was signed in Gdansk in 2000. Interestingly, on 14 August last year, mayor Adamowicz read it out in one of the meetings before the elections. The document speaks about our duties towards the community. About what we should do. How to support the community. How to fight for responsible use of words, respect for life and nature, for the family.
Why is this important? Because, after issuing the Charter, a whole series of debates was held. As you know, it was entitled Gdański Areopag (“Areopagus discussion forum in Gdańsk”).
AS: That's true.
AB: They ended in 2012. To some extent, they were related to the achievements of Archbishop Gocłowski. When I think about those discussions, those extremely important and serious meetings, I wonder whether people representing different political and ideological options have any place to meet, to speak to each other in a responsible way.
AS: In my opinion, there is no such place now.
AB: Well, indeed. So maybe we should get back to this idea that was realized and that connected people. It was possible to meet Ziemkiewicz and Wanda Nowicka there. Or Jurek Owsiak and sister Chmielewska. People from Teologia Polityczna [Political Theology] and from Kultura Liberalna [Liberal Culture]. A place where they used to come. We need it in Poland very much, we don’t have those platforms for discussion.
And if I were to describe Paweł Adamowicz with one word, I like what Basil Kerski (head of ESC) told me yesterday on the phone.
AS: of the European Solidarity Centre….
AB: He said that describing Paweł Adamowicz in one word, one would have to say he was “ecumenical”.
AS: Ladies and gentlemen, let this be a lesson for us. I feel that my pessimism is going to lose with Mr minister's optimism.
My and your guest was Commissioner Adam Bodnar. Soon, a debate in the Sejm is going to be held. Grzegorz Schetyna will speak about Paweł Adamowicz. And, all in all, I have some optimism. I believe that Jarosław Kaczyński will speak about the situation, as he has not yet publicly said anything about it, he has only issued a statement. I hope he will say something now.
Thank you very much, and see you next time.