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In February, the District Court in Warsaw was faced with a peculiar question:  does misspelling a name in an article justify a request for rectification?

“Know just where to draw the line”

The error concerned Cezary Kaźmierczak, the chairman of Union of Entrepreneurs and Employers (ZPP), and appeared in an article in „Gazeta Wyborcza”. The author misspelled Kaźmierczak’s name, using the letter “zi” instead of “ź”- while phonetically both represent the same sound, in writing, their respective usage follows different grammatical rules.

The typo was corrected, but the plaintiff – ZPP - remained dissatisfied. On its official website, the organization lists “fostering amelioration of conditions of running a business in Poland” as one of its aims, declaring the necessity of a “thorough reform of commercial courts - the introduction of a division of cases into minor and serious ones” as a way to achieve it.

ZPP sued the editor-in-chief of Wyborcza.pl, asking not only that the mistake is corrected, but also demanding that the portal retract a paragraph describing how the union avoids siding with appeals made by entrepreneurs critical of the ruling camp.

Among others, the contested publication concerned the columnist Tomasz Wróblewski. In the article, the author referred to Mr. Wróblewski as the president of the Warsaw Enterprise Institute, a think tank with links to the Union of Entrepreneurs and Employers headed by Kaźmierczak.

Having examined the typo issue, the court decided that “it is a matter of correcting the misspelled name. The error, most likely stemming from incorrectly replacing the letter “ź” with “zi”, is in its essence a problem of grammatical nature. The chief editor’s refusal to fulfil the request for rectification is thus justifiable". Moreover, in a ruling on February 11, the court also dismissed other claims issued by ZPP.

The author of the contested publication wrote yet another article about Tomasz Wróblewski. In it, he asks: "How come a man who glorifies the free market and entrepreneurship refers to entrepreneurs protesting against the decisions of the Law and Justice government as a bunch of weasels demanding a tribute from the state?".

For publishing these two opinion pieces, Wyborcza’s editorial is now facing a slate of lawsuits that go far beyond a single typo. The editor-in-chief of Wyborcza.pl and the newspaper’s owner Agora SA have been sued by Tomasz Wróblewski, ZPP, and Cezary Kaźmierczak a total of five times. Mr Wróblewski himself filed three lawsuits. Three of the five cases have already been adjudicated by a court of the first instance, ending with verdicts favourable to "Wyborcza".

Justifying the dismissal of one of the rectification claims brought before the court by Tomasz Wróblewski, the judge quoted a passage from a comedy written by the 19th-century Polish playwright Aleksander Fredro to emphasize the absurd and trivial character of the lawsuit: "Know just where to draw the line".

Deliberate harassment of journalists in an effort to create a chilling effect

Instances when a single article was used as a pretext for launching multiple legal cases do not just stop here.

In 2018, one of our journalists wrote about the pedophile registry created by the Ministry of Justice meant to catalogue all cases of sexual offenses, including those committed by priests. The author of the publication argued that the registry is constructed in such a way as to deliberately conceal instances where pedophile priests were the perpetrators. Zbigniew Ziobro, the Minister of Justice, challenged this single publication with four lawsuits (as an individual and as the Minister of Justice). Sebastian Kaleta, deputy minister, and Law and Justice MP, took the case to court twice. The purpose of filing six lawsuits against a single article was to create a so-called "chilling effect", entangling journalists in a series of legal battles.

The flat cost of a lawsuit against violation of personal rights is PLN 600. If the suit includes a monetary claim, there is also an additional proportional fee calculated based on the value of the damages filed. Bringing one lawsuit concerning the same article instead of several individual ones does not make a substantial difference in terms of administrative costs. It allows, however, to limit the litigation costs by decreasing the expenses spent on legal representation. But state-owned companies, politicians, or civil servants do not have to care about such costs - after all, the money does not come from their own pockets. They can afford to flood the courts and private entities such as newspapers and portals with lawsuits.

- Such lawsuits only burden the courts with additional work! From my professional experience, I know of instances when a client insisted on splitting a single case into several individual suits. But these clients were just plain litigants for litigation sake - says attorney Jan Widacki, professor of law and former deputy minister of interior.

Karolina Zbytniewska, editor-in-chief of EURACTIV.pl and expert on the European media market, says that such measures are a clear instance of using the courts to restrict press freedom.

- We are witnessing successive attempts to silence free media who dare to show their support, for example, certain civil society initiatives. This is done on several fronts: entangling outlets in a series of lawsuits is one of them, but it also includes limiting their funding sources (for instance, by burdening media outlets with double taxation, introducing the so-called ad tax, or simply withdrawing government ads from critical newspapers). We call this “asymmetrical support” – the decision where to publish governmental ads is not based on the newspaper's circulation, but rather the political views it represents - she explains.

Małgorzata Kolińska-Dąbrowska, a long-time journalist of "Gazeta Wyborcza", tells us how journalists can be dragged into lengthy court battles: - I have had two cases filed against me for one article at the same time: a criminal case under article 212 of the Penal Code, and a civil case. It happened that the plaintiff notoriously failed to appear at the hearings despite it being in his own interest. The idea was to drag the case out indefinitely, pulling me away from my desk so that I will be busy going to court instead of working, and thus not earn any money. In one of the two proceedings, even the judge could not stand it and dropped the case, justifying the decision by saying that "the plaintiff is clearly not interested in the case”.

Archaic libel law

Article 212 § 2 of the Criminal Code is a legal relic from Poland’s communist past. It regulates "defamation" in the media, stipulating that a violation can even be punished with imprisonment. For years, editors, publishers, and human rights organizations have urged the Polish government to abolish this oppressive regulation, as it can be used to suppress critical journalism and restrict media freedom. The UN and the OSCE both reprimanded Poland, arguing that punishing speech with imprisonment runs contrary to guarantees of freedom of expression.

Meanwhile, politicians associated with the ruling camp continue to use it. In one example, Andrzej Kryze (former deputy minister of justice in Law and Justice’s first government, and later the Ministry’s advisor) sued a journalist from "Gazeta Wyborcza" for publishing an article about the first major financial scandal in Poland after 1989, the so-called FOZZ (Foreign Debt Service Fund) scandal.

A similar case, based on article 212 of the Criminal Code, is also pending in a court in Katowice. It was brought by Jakub Kalus, an activist associated with the National Movement (Ruch Narodowy), who allegedly participated in staging a “happening” that included hanging effigies of oppositional MEPs on makeshift gallows.

Jarosław Kaczyński wanted to use the national prosecutor's office as an instrument to go after "Gazeta Wyborcza" journalists on the basis of article 212 of the Criminal Code

These cases, however, are only the tip of the iceberg.

Ruling camp politicians and public institutions or state-owned companies they control have filed nearly 60 lawsuits against "Wyborcza" since PiS came to power in November 2015.

“Wyborcza” has always kept a critical eye on government authorities, but the number of lawsuits filed against the newspaper have reached a record high that had no parallels ever since “Wyborcza” was found in 1989. Each lawsuit concerned an instance where we reported on crucial, controversial topics revealing the scandals and unethical conduct of the ruling right-wing coalition, the latter almost always retaliated with judicial proceedings.

This was the case with the controversial plans of the Srebrna company to build twin office towers in the centre of Warsaw. The company has strong links to the ruling Law and Justice party and its managers include close associates and family members of Jarosław Kaczyński. After we published our investigation, PiS tried to discredit it in court. In the end, we won the legal case against the ruling party, and the court confirmed that our publications were reliable and served the public interest.

Demands for withdrawal of articles... from print editions

At the end of 2018, the National Bank of Poland submitted as many as six legal requests demanding that we remove seven of our articles, both from our portal… and the print edition. It demanded that the Polish edition of Newsweek do the same with two pieces it published. The articles concerned the bank’s president, Adam Glapiński, and described his links to the corruption scandal involving the Financial Supervision Authority (KNF).

The plaintiff also wanted specific journalists to be banned from writing about the National Bank and its president.

The regional court dismissed the bank’s motions for precautionary measures as clearly unfounded. Later, the plaintiff filed as many as four lawsuits against "Wyborcza", but ultimately ended up not winning any of them.

Dissatisfied with the court’s decision, the attorney representing the National Bank, Artur Wdowczyk, decided to report the judges to the National Prosecutor's Office. The National Prosecution considered the case and even went as far as to attempt to break court secrecy. The attorney did not like the fact that the verdicts were "identical", and suggested that one judge had copied the justification for her decision from the other. However, both suits brought by the National Bank were constructed as if they were copied and pasted - they were almost identical.

We also won in two other cases brought before a regional court and then also the court of appeals by the Polish National Foundation (an organization established and funded by state-owned companies), which took issue with our publications disclosing its wasteful use of public money.

Piotr Sulima, the co-owner of a company hired to run Andrzej Duda's presidential election campaign, sued us five times for our publications concerning its use of so-called social media bots in the campaign. He lost all the cases.

We were also sued by KGHM - the multinational mining and metal manufacturing giant partially owned and controlled by the Polish state. The company spent millions in public funds on purchasing Chinese masks with fake certificates which ended up in healthcare facilities all over the country. In our articles, we openly wondered whether the masks would be effective and safe to use in hospitals. Our questions and journalistic investigation conducted during a time when there was a shortage of personal protective equipment in Poland angered the company’s management. They sued us twice and lost both cases. After the fact, it turned out that the masks imported by KGHM did not meet the appropriate safety requirements, which was confirmed by the government's Central Institute for Labour Protection. The prosecutor's office also became interested in the logistical aspects of transporting the masks.

We also had to prove in court that we were right to expose the "troll farm" scandal at the Ministry of Justice and the judges who were involved in slandering other judges not willing to toe the party line.  

We were sued twice by the Polish Security Printing Works, and three times by the Polish Armed Forces Group (both state-owned companies). We won all cases.

We have also been repeatedly taken to court by the public TV broadcaster for disclosing its enormous expenses (financed entirely from the state budget), and for openly voicing an opinion that its current management censors certain performers or content. The court already dismissed two such cases - the third one is still pending.

Blood for blood

But we are not the only independent media outlet on the market that the ruling camp is trying to entangle in a series of legal battles. As we found out, since 2015, people affiliated with the ruling party have filed almost 40 lawsuits against Ringier Axel Springer Polska, the owner of Onet, one of Poland’s largest online media outlets. Their demands include rectification or withdrawal of articles, public apologies, and compensation. Among the plaintiffs are the Polish Public Television, Ministry of Justice, Łukasz Piebiak (former deputy minister of justice), Sebastian Kaleta, Marian Banaś, Poland’s chief police officer, Grupa Azoty, and the “Polish Airports” state enterprise.

When asked about similar cases of flooding critical media with lawsuits, Karolina Zbytniewska brought up the example of Malta and the use of Strategic Lawsuit Against Public Participation (SLAPP) to target critical media.

Daphne Caruana Galizia, a Maltese investigative journalist, was sued 19 times by an influential businessman, and a court official even taped her house with hundreds of pieces of paper with subpoenas. A few months later, the journalist was murdered. A remote-controlled bomb exploded in her car.

Ms. Zbytniewska warns that fuelling the hate spiral only leads to citizens "taking matters into their own hands”. - I hear ever more often about threats against NGOs. Only two days ago, several Polish NGOs received a threatening e-mail.

It read:

So you support the Women's Strike movement? It's time you pay for it. We've already planted a bomb in your office. We have put up with these leftist antics and their destructive calls for far too long. We can no longer turn a blind eye to this. We will act decisively. We don't care about your fate. The warning has already been issued. You can only blame yourself now. Abortion is murder. A life for a life! Blood for blood

***

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