THE POLISH MEDIA LAW AMENDMENT (BROADCASTING ACT) – PROVISIONS, CONTROVERSIES AND ITS INTERNATIONAL LAW CONSEQUENCES
On 11th August 2021 Poland’s lower house of parliament passed an Amendment Act to the Act of 29 December 1992 on broadcasting (radio and television)[1]. This draft law aroused vast controversies and interest both among the Polish and international society. The draft law has been submitted to the Sejm (lower house of the Polish parliament) at the beginning of July 2021 and after one month the Amendment Act was passed by the Sejm and has been conveyed to the Senate (the higher house of Polish parliament) and President. Thus, the Sejm enactment was only the first instance of the legislative process, now the Senate will get on the Act.
To see the legislation path in Sejm: https://www.sejm.gov.pl/sejm9.nsf/PrzebiegProc.xsp?nr=1389
Before we move to the Amendment Act itself, at first we will begin by outlining the general legal frames of the Broadcasting Act.
MEDIA LAW – POLISH REGULATIONS
We present merely the main legal provisions concerning the proposed Amendment Act and controversies incident to it with reference to the entire Act.
- The main goals of the Broadcasting group (the radio and television).
In the article 1 we can read that: the broadcasting group tasks are to 1) provide information; 2) make culture and art objects accessible, 3) provide entertainment, 4) support the national audiovisual art (section 1). These tasks should be realized by providing the media services (section 1a). Thus the TV stations (roughly speaking) functioning in Poland during the media provision should fulfill these tasks’ requirements.
- Who are the media services provider and broadcaster, what is the media service
In article 4 there is a catalogue of legal definitions. In this respect we can get to know the legal meaning of terms such as: 1) media service, 2) audition, 3) media services provider. 4) broadcaster.
Article 4 [Legal definitions].
Within the meaning of the Act:
1) a media service is a service in the form of a programme or an on-demand audiovisual media service for which the editorial responsibility is borne by its provider and the primary purpose of which is to provide through telecommunications networks to the general public of programmes, for informational, entertainment or educational purposes; a media service is also a commercial broadcast;
(2) a programme is a set of moving images with or without sound (audiovisual programme) or a set of sounds (radio programme) constituting, on the basis of their content, form, purpose or authorship, a discrete whole within a programme or a catalogue of programmes made available to the public within an on-demand audiovisual media service, created by the media service provider, hereinafter referred to as “the catalogue”;
(4) a media service provider is a natural person, a legal person or a commercial partnership having editorial responsibility for the choice of the content of the media service and determining the manner in which it is put together, being a broadcaster or an entity providing an on-demand audiovisual media service
(5) a broadcaster is a natural person, a legal person or a commercial partnership who creates and compiles a programme and distributes it or communicates it to others for distribution;[2]
- The Polish National Broadcasting Council
The Polish National Broadcasting Council is the institution which is the proper state body for the broadcasting issues. In article 6 section 2 of the abovementioned Act there are listed its tasks which include, inter alia, drafting, in consultation with the Prime Minister, the directions of state policy in the field of radio and television broadcasting, etc. Crucial information is that it is the most important institution in the case of radio and television broadcasting. Chapters 3 and 4 include the provisions about radio and television programs and the public radio and television (from article 13 to 32 of the Act).
- How to conduct TV station – a broadcasting concession (franchise)
Chapter 5 includes a number of articles indicating the way and legal conditions on how to get tv concession on broadcasting TV station. Article 33 of Polish Broadcasting Act determines that there is a necessity to obtain a concession in order to conduct TV station (with exceptions listed in section 1a of the Act). Article 35 is crucial in this respect because there are listed requirements for applying entities to obtain a concession / licence.
For instance:
- Licence can be granted for a natural person who has Polish citizenship and is domiciled in the Polish territory;
- Company must have its office in the territory of Poland;
- A foreign company (a company with foreign capital) must fulfill some percentage limit of foreign stock.
This article introduces a possibility to extend the licence.
POLISH BROADCASTING LAW AMENDMENT
Polish Broadcasting Amendment Act was passed by Sejm on 11th August, 2021. Despite the fact that the draft law is short, it is very concise with the significant amended article proposition. The article 1 section 1 and 2 are about the National Broadcasting Council and are not crucial from the media perspective, but section 3 and 4 concern the article 35 of the Act which regulate the requirements and legal conditions of obtaining the concessions / licences are relevant and full of legal doubts.
Letter ‘a’ in section 3
The concession for foreign company can be granted if the direct or indirect equity participation of foreign persons in a company or a direct or indirect participation of foreign persons in the share capital of a limited liability company or a joint stock company, or in the case of a simple joint stock company – in the total number of shares of this company number of shares in the company, does not exceed 49%. [3]
Letter ‘b’ and ‘c’ in section 3
The concession can be granted for the foreign company with a domicile in the territory of the European Economic Area if the company is not subsidiary of the foreign company from outside EEA.
Article 2 introduces an obligation for foreign companies which are or have a domicile outside the EEA to adapt their capital structure and their articles of association or statues to restriction in abovementioned article.
To see full Amendment Act: https://www.senat.gov.pl/prace/druki/.
CONTROVERSIES
A proposition of amending article 35 of the Polish Broadcasting Act is surrounded with controversies because the proposed law amendment will strike a popular TVN station. After the date the act comes into force, TVN will lose its concession (the concession will not be extended), because Discovery Inc. (which TVN is a part of) does not have its domicile in the territory of EEA. Many of the journals and institutions said that this Amendment Act is an assault on the freedom of speech, freedom of media and pluralism associated with the democracy. And it is not only a local, Polish problem, because the biggest European and world media wrote about it.
For instance:
- The Time wrote about the escalation on the line Poland-U.S.: https://time.com/6089941/poland-discovery-media-law/
- POLITICO wrote about US legal action over Polish media law; the voting in Polish parliament and political protests associated with media law organized by the coalition parties:
https://www.politico.eu/article/discovery-poland-media-law-legal-action/
https://www.politico.eu/article/polands-pis-rams-through-media-law-despite-us-warnings/
https://www.politico.eu/article/poland-ruling-coalition-collapses-media-law-protests/
- Le Figaro wrote about journalists’ association critique and about the amendment act in general:
Polish media reacted the most. On the one hand, more economically oriented newspapers wrote about the disastrous consequences of that political decision which will efficiently discourage foreign (especially American) investors to invest and develop their companies in Poland, especially on the media market, on the other hand, more legal and social oriented newspapers wrote about the inconsistency with the constitution, European law and international law.
The Business Insider about the economic consequences: https://businessinsider.com.pl/polityka/lex-tvn-gowin-w-usa-przygotowywana-jest-lista-restrykcji-wobec-polski/vj2zmsy
The Dziennik Gazeta Prawna about the legal issues: https://serwisy.gazetaprawna.pl/media/artykuly/8207299,lex-tvn-niezgodny-z-konstytucja-prawem-unijnym-i-traktatem-z-usa.html
INTERNATIONAL LAW PERSPECTIVE
And there arises one of the crucial issue of that Act – the international law perspective and international law consequences. It is significant that TVN station belongs to the American pool Discovery Inc. and that the Amendment Act mainly strikes this station and therefore Discovery Inc. It is relevant, because Poland is bound by the international treaty between Poland and United States of America of 21th March 1990 on commercial and economic relations. Before we present the legal and diplomatic consequences at first we discuss the main provisions of that treaty, because it will demonstrate that Poland indeed violated the treaty provisions.
Already in the Preamble to this act there is the following provision:
Poland and United States
desiring to promote a wider economic cooperation between them, regarding investments by nationals and companies of one Party in the territory of the other Party, (…)
agreeing that fair and equitable treatment of investments is desirable in order to maintain stable investment conditions and maximum efficient use of economic resources, (…) [5]
thus it indicates that the Polish legislation shall be created with regard to the equitable treatment and the willingness to reach that state. In case of recent parliament enactment it is well-based to have doubt about the equitable treatment.
In article 1 there is a legal definition of ‘nondiscrimantory’, ‘national treatment’, ‘commercial activity’, ‘most-favoured-nation treatment’. Non-discriminatory means:
(f) “non-discriminatory” treatment means treatment which is at least as favourable as national treatment or most-favoured- nation treatment, whichever is the more favourable, [6]
And already in article 2 section 1 we can read that each of the Parties will treat the investments and other activity in the non-discriminatory way (with some particular exceptions) and in section 6 of the same article that:
(6) the investment shall all the times be treated in a fair and equitable manner and shall enjoy full protection and security and in no case be treated less favourably than under international law. Neither Party will infringe in any arbitrary and discriminatory manner the management, operation, maintenance, use, enjoyment, acquisition, development or disposal of the Investment. Each Party will comply with any obligations it may have entered into with respect to the Investment.[7]
(8) Considering the right to establish or maintain exceptions falling within one of the sectors or areas listed in the Annex, each Party shall accord non-discriminatory treatment to nationals and companies of the other Party with respect to investments and associated activities undertaken by them with respect to:
a) the granting franchises or licensing rights,
b) the issuance of registrations, concessions, authorizations and other approvals necessary for the conduct of commercial activities, which shall always be issued as expeditiously as possible.[8]
Hence the real possibility for non-extending TVN broadcasting concession and the protracted already ongoing talks on extending the concession are strictly inconsistent with the treaty provisions.
Under the circumstances of the inconsistency with treaty provisions, there arises the issue of dispute resolution and the consequences of non-compliance with the provisions. Article IX constitutes the arbitration clause in case of the investment dispute.
Article IX
(2) If an investment dispute arises between a Party and a national or company of the other Party, the parties to the dispute shall seek to resolve it through consultation and negotiation, which may include the use of non-binding procedures involving third parties. [9]
Article X constitutes the arbitration clause in the event of a dispute between the parties. If the dispute arises, the parties will conduct consultations, diplomacy or the dispute shall be submitted to the International Chamber of Commerce or to UNCITRAL – United Nations Commission On International Trade Law.
Referring to these provision, there are justifiable doubts whether the Polish party did breach the rules of the treaty. In Discovery Inc. estimation the answer is positive and the company issued a statement on charging the Polish Government with violations to the US – Poland Bilateral Investment Treaty.
To see full statement: https://corporate.discovery.com/discovery-newsroom/discovery-inc-to-charge-the-government-of-poland-with-violations-to-the-us-poland-bilateral-investment-treaty/
The issue of the threat of breach of an international agreement and the possibility of liability before an international tribunal was also discussed by the Polish media:
Moreover, there can be found information that the European Commission has taken an interest in the media law changes in Poland, and is currently observing it closely while awaiting the final entry into force of this Act:
[1] To see the full Act before the Amendment Act implementation: https://sip.lex.pl/#/act/16795082/2890857/radiofonia-i-telewizja?keyword=radiofonia%20i%20telewizja&cm=SFIRST (access date: 16th August, 2021).
[2] https://sip.lex.pl/#/act/16795082/2890857/radiofonia-i-telewizja?keyword=radiofonia%20i%20telewizja&cm=SFIRST (access date: 16th August, 2021).
[3] https://www.senat.gov.pl/prace/druki/, file:///C:/Users/OEM/Downloads/482.pdf, (access date: 16th August, 2021).
[4] For instance le Figaro moreover wrote about Donald Tusk twitter reaction:
«La majorité parlementaire, collée par la boue de la corruption et du chantage, s’effondre sous nos yeux», a écrit sur Twitter l’ancien chef de l’UE Donald Tusk, qui dirige le principal parti d’opposition Plateforme civique (PO). «Elle peut durer encore un certain temps, mais elle n’est plus en mesure de gouverner», a-t-il déclaré.- https://www.lefigaro.fr/flash-eco/pologne-le-parlement-adopte-une-loi-sur-les-medias-mais-l-avenir-de-la-majorite-reste-incertain-20210811 (access date: 16th August, 2021).
[5] https://sip.lex.pl/#/act/16796171/710111/usa-polska-traktat-o-stosunkach-handlowych-i-gospodarczych-waszyngton-1990-03-21?keyword=traktat%20Polska%20Stany%20Zjednoczone%20o%20wsp%C3%B3%C5%82pracy%20gospodarczej&cm=SFIRST, the preamble, (access date 16th August, 2021).
[6] https://sip.lex.pl/#/act/16796171/710111/usa-polska-traktat-o-stosunkach-handlowych-i-gospodarczych-waszyngton-1990-03-21?keyword=traktat%20Polska%20Stany%20Zjednoczone%20o%20wsp%C3%B3%C5%82pracy%20gospodarczej&cm=SFIRST, article I letter ‘f’, (access date 16th August, 2021).
[7] https://sip.lex.pl/#/act/16796171/710111/usa-polska-traktat-o-stosunkach-handlowych-i-gospodarczych-waszyngton-1990-03-21?keyword=traktat%20Polska%20Stany%20Zjednoczone%20o%20wsp%C3%B3%C5%82pracy%20gospodarczej&cm=SFIRST, article II section 6, (access date: 16th August 2021).
[8] https://sip.lex.pl/#/act/16796171/710111/usa-polska-traktat-o-stosunkach-handlowych-i-gospodarczych-waszyngton-1990-03-21?keyword=traktat%20Polska%20Stany%20Zjednoczone%20o%20wsp%C3%B3%C5%82pracy%20gospodarczej&cm=SFIRST, article II section 8, point a,b, points from ‘c’ to ‘k’ are omitted (access date: 16th August 2021).
[9] https://sip.lex.pl/#/act/16796171/710111/usa-polska-traktat-o-stosunkach-handlowych-i-gospodarczych-waszyngton-1990-03-21?keyword=traktat%20Polska%20Stany%20Zjednoczone%20o%20wsp%C3%B3%C5%82pracy%20gospodarczej&cm=SFIRST, article IX section 2, (access date 16th August, 2021).
