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Ever since coming to power, Poland’s ruling right-wing coalition led by Jarosław Kaczyński’s Law and Justice party has moved ever closer to shifting the country’s media environment in its favor. More often than not, the means PiS used to achieve this aim had little to do with principles of democratic governance.
In late 2015, it took control over the public broadcaster TVP and the public radio, turning them into a government propaganda mouthpiece fuelled by multi-billion subsidies financed by taxpayer money.
Last year, the state-controlled oil company Orlen acquired Polska Press - Poland’s largest regional media publisher - giving the government effective control over 20 regional daily newspapers, around 120 local weeklies, and some 500 internet websites.
On Friday, December 17, the ruling camp has taken another major step towards strengthening its grip on government-critical sources of information. During the last, pre-holiday parliamentary session, the Law and Justice-controlled lower house of the parliament passed a dormant media law radically changing the country’s media ownership structure.
Here are some of the most important facts about the contentious legislation:
The new legislation amends Article 35 of the Polish Broadcasting Act. Most importantly, the amendment prohibits companies registered outside the European Economic Area from controlling more than a 49% stake in Polish broadcasters. Affected companies will have seven months to comply with the new media regulation from the moment it enters into force. Should they fail to alter their ownership structures, they run the risk of losing their broadcasting licenses.
Many see the new law as a thinly-veiled effort to shut down Poland’s largest commercial broadcast network TVN and silence its subsidiary – Poland’s largest news channel TVN24, which oftentimes finds itself at odds with the narrative pushed forward by the government.
Since 2015, TVN has been fully owned by the American-based Discovery, Inc. through a subsidiary registered in the Netherlands. Under the new law, Discovery would be forced to sell at least 51% of its stakes in the Polish broadcaster.
As we reported in the past, the network’s American owner would not encounter any difficulties in finding a buyer. In fact, before the company was taken over by Discovery, Inc., state-owned companies controlled by PiS appointees made several very lucrative offers to purchase TVN from its previous owner, Scripps Network.
The bill’s stated objective is to "clarify regulations enabling the National Broadcasting Council to effectively prevent entities from outside the European Union, including those posing a significant national security threat, from taking control over radio and television broadcasters".
Yet, comments of high-level government officials leave no doubt about the real purpose of the new law.
Asked about the legislation, the sponsor of the bill and a PiS MP Marek Suski said that "if this law is passed and some part of these shares are perhaps also bought by Polish businessmen, we will have some influence over what happens in this television [TVN]".
In a recent interview with the Online news portal Onet, the Minister of Education Przemysław Czarnek went as far as to call the American-owned station "anti-Polish".
Asked whether the passage of the new law would have any serious consequences for Polish-American relations, the Minister said: - "Are you really as naive as some members of the opposition to think that our partnerships - economic, military, and strategic - are based on the ownership structure and behavior of one or another single broadcaster, which additionally shows a distorted reality, often in an anti-Polish way? Oh, please, give me a break."
The bill was first passed by the lower house of the parliament in August despite widespread protest from the opposition, media sector, international media organizations, the European Commission, and the U.S. administration.
Back then, the ruling camp managed to pass the contentious media bill with the narrowest of margins, and only after violating the parliamentary procedures- the opposition’s motion to postpone the debate was forcefully rescinded.
In September, the opposition-controlled Senate had successfully vetoed the media bill. Yet, in an unexpected attempt at overturning the veto, on Friday, December 17, the ruling camp has again made use of the element of surprise to achieve its goal.
Members of parliament’s lower house committee on media were informed of the new item on the agenda via text messages mere 24 minutes before the committee vote, all the while the Speaker of the Sejm, PiS-backed Elżbieta Witek, was offering her holiday greetings to the media representatives preparing to leave the parliament. Two hours later, the bill was passed during a plenary vote.
At least two procedures were breached during the hectic 120 minutes. First, the representative of the Senate was not allowed to present the upper chamber’s justification for vetoing the bill. Second, members of the committee should be informed that a meeting of the committee takes place with at least a three days’ notice. The ruling camp was, as usual, largely unbothered by the criticism, which came not only from the opposition but also from the Sejm’s own bureau of legal expertise.
Even putting outside the obvious violation of parliamentary procedures and constitutional law, the larger issue at stake is that the proposed law is clearly and unequivocally targeting a single media outlet, the only remaining TV broadcaster with wide, popular appeal that does not shy away from shedding light on the ruling camp’s multiple scandals, illegal practices and assault on the rule of law.
In August, then Deputy Prime Minister Jarosław Gowin proposed a compromise solution that would fulfill the supposed main objective of the bill while protecting TVN from a hostile takeover by the state-owned media. It stipulated that entities registered in non-OECD countries would be forbidden from owning a controlling stake in any Polish broadcaster, thus ensuring that no TV station could be owned by Russia or another state that would pose a security threat. The suggestion was summarily rejected, and Gowin left the ruling coalition over the lex TVN.
The fate of the contentious legislation now depends on President Andrzej Duda. Starting Friday, December 17, he will have 21 days to issue a veto. Since the president expressed his criticism of the media bill in the past and – through his chief of staff – announced that he would veto the legislation in its existing state, those who oppose the anti-US media bill are calling on Duda to use his presidential power to strike it down.
There is also another possible scenario. The President might decide to send the bill to the Constitutional Tribunal which in turn could rule some of its provisions unconstitutional. Specifically, apart from altering media ownership structure, the law also includes a provision that the public media authorities will no longer be appointed by the National Media Council, but by the National Broadcasting Council, whose members will be appointed with the consent of the opposition-controlled Senate. This could hypothetically limit the influence of the ruling party on appointing managers to, for instance, the public broadcaster TVP. This specific provision was initiated by the far-right Confederation party.
Yes, the president’s veto can be overturned by a three-fifths majority in the lower house of the parliament. However, considering that most of the opposition parties are adamantly opposed to the new legislation, it is highly unlikely PiS would succeed in mustering the necessary votes.
In a Tweet published on Friday shortly after the passage of the media bill by the Sejm, Bix Aliu – US chargé d’affaires in Warsaw, addressed the Polish president, writing that "the United States is extremely disappointed" and expects "President Duda to act in accordance with previous statements to use his leadership to protect free speech and business".
Daniel Fried, former U.S. ambassador to Poland with many influential ties in the US Congress and around President Joe Biden, has commented on the issue as well:
Ned Price, the US State Department’s Spokesperson, issued an official statement urging the Polish President to veto the bill: "the United States is deeply troubled by the passage in Poland today of a law that would undermine freedom of expression, weaken media freedom, and erode foreign investors’ confidence in their property rights and the sanctity of contracts in Poland. We encourage President Duda to reaffirm his past statements about respecting the shared democratic norms that underpin our relationship and his commitment to defend the constitutional principles of freedom of speech, freedom to engage in economic activity, property rights, and equal treatment under the law".
European Commission Vice President Vera Jourová said that the media law "puts further pressure on an already troubled media sector in Poland", and warned the Law and Justice government that "the Commission will not hesitate to take action in case of non-compliance with EU law".
It is impossible to offer a firm and definitive answer to this question – all we are left with are speculations – some more credible than others.
There is little doubt that the exact timing: the last, pre-Christmas session of the parliament - was picked for at least two reasons. First, Sejm was voting on the next year’s budget, ensuring that virtually all MPs from the governing coalition were present and mobilized in their unity. Second, once the budget was passed, both the media and the members of the opposition had little reason to assume that a new item would be added to the legislative agenda, with preparations for Christmas recess in full swing. To perpetuate that idea, the Speaker of Sejm Elżbieta Witek even offered her Christmas and New Year’s wishes to members of the press corps minutes before the committee discussion on Lex TVN was announced.
The end of the year is also seen as a convenient moment from the perspective of managing public backlash. While the original wave of protests on Sunday throughout Poland was impressive, it is difficult to expect that it will continue, with Poles around the country preparing for Christmas and traveling to visit their families. By the time their lives go back to normal, the initial anger may be a thing of the past for those less invested in politics.
Another widely circulated argument is that the ruling camp is re-opening the media war front to shift the public attention from the many problems faced by the government – rapidly accelerating inflation, the huge daily toll of Covid-19 (over the last three weeks on average 500 Poles die from the virus every single day), the humanitarian crisis at the border, etc. A number of personal and political scandals add to the list. While the Lex TVN is hugely controversial, it is at least that – controversial. Opinions on it differ, with many die-hard Law and Justice supporters vehemently in agreement that the broadcaster should lose its license. It is far less certain that they are happy about inflation or the government’s handling of the Covid-19 epidemic.
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