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Deutsch: Polnischer Oberster Gerichtshof: Elektronische Presse muss registriert...
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&a...
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_trz...
(Contribution by Joanna Kulesza, University of Lodz, Poland)