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According to the draft, one should understand a workforce responsible for “editorial decisions”, or having “editorial responsibility”, in the context of those people who are editorially responsible for the selection and organization of contents. Therefore, this excludes people who only transmit programmes for which third parties hold editorial responsibility. According to the AVMS Directive, “editorial responsibility” means the exercise of effective control both over the selection of the programmes and over their organization, either in a chronological schedule, in the case of linear television broadcasts, or in a catalogue, for VoD services.
Regarding the location of the workforce responsible for editorial decisions, several different approaches have been adopted by the various national regulatory authorities within the EU. None of these approaches has been approved as being the one and only correct approach by the ERGA. The most reasonable of the various approaches is that stating that the locus of editorial responsibility is the usual place where the people (either employees or contractors) participating in the editorial decision making process are located. This would create a direct link to the entity employing the workforce in question from a formal and factual point of view. Under such an approach, the location of positions such as editors in chief, programme directors, and programme managers may be critical.
New world - New radio
After the rapid departure of many well-known journalists from the editorial teams of Poland’s public radio broadcasters, two new major radio stations, operating as internet broadcasters, have arrived on the Polish market. “Radio Nowy Świat” and “Radio 357” operate online and are attempting to remain financially independent from advertising revenues. These stations’ main source of funding are their fans, many of whom contribute through the Patronite.pl platform. This model appears to be having some success when looking at several popular Polish podcast producers, such as Dariusz Rosiak, formerly a journalist at “Trójka” (which, for the time being, remains the Polish public broadcaster’s most popular and open minded radio programme), whose podcasts are currently available on Spotify, as well as on other platforms.
Internet radio and podcasts seem to be the perfect solution for two distinct groups in the Polish media ecosystem: those who are trying to escape limitations on freedom of speech (broadly speaking), and those who are taking their first steps in the public broadcasting of their ideas and projects.
Both of these formats, i.e. internet radio and podcasts, are not currently subject to the rather old fashioned regulations of the Polish Broadcasting Act. However, under Article 54b of the Press Law, the provisions on legal liability and proceedings in press matters apply accordingly to breaches of the law related to conveying human thoughts by means for their the dissemination other than the press, regardless of the technical method of their transmission, in particular non-periodic publications and other printed, visual or audio products.
Polish law will continue to develop in order to catch up to the vast variety of new means and methods of expression, which we will be able to see in the coming years.
A revolution on the press market
The last several weeks of 2020 brought with them the huge and widely commented purchase of all shares in Polska Press Sp. z o.o., the published of over 140 regional and local newspapers, by Orlen S.A., the state-owned oil company. The transaction results in Orlen holding both one of the largest Polish press distributors, Ruch S.A., and an astonishing portfolio of press titles. This transaction opens the way for this state-owned company to control new communications channels to the 17.4 million users of the various online services managed by Polska Press.
The entire Polish media market will continue to follow the developing situation in the press market over the coming months. We can hope that it does not follow the pattern of the U.S., where many papers and magazines taken over by private equity funds went bankrupt and were then shut down.
What to look out for in 2021:
All lawyers involved in media and television matters are awaiting the final draft of the new law implementing the EU AVMS Directive. Although there have been no new developments in the legislative process since September 2020, the implementation deadline has already passed, so we can expect new rules to be adopted very soon.
That being said, in mid-January 2021, the Ministry of Justice announced that it is working on a new regulation concerning freedom of speech, which is intended to apply to online platforms, and to social media in particular. However, the draft of this regulation has not yet been published.
Based on the Ministry’s announcement, the draft provides for the establishment of a five-member Freedom of Expression Council which will act to uphold constitutionally protected freedom of expression on social media. The Council will be composed of experts in law and new media, who will be elected by Parliament for a six year term by a 3/5 qualified majority of votes, which should guarantee that the Council is pluralistic and has cross-party support.
All social media users will be entitled to file complaints to the platforms or services they use if their accounts are blocked or the users’ content is deleted, even if it does not breach Polish law. Social media platforms and services will be required to consider complaints within 48 hours, and if they do not restore the content, or the account remains blocked, users will be entitled to appeal to the Freedom of Expression Council, which will examine them within seven days. If the Council finds that the complaint has merit, then they may order that the content or account access be restored immediately. The Council’s proceedings will be conducted electronically to ensure that they are conducted speedily and at low cost.
The Council’s decisions can be appealed in court. According to the draft law, the Council will be entitled to impose administrative fines on social media platforms or service providers for failure to comply with its decisions, or a court ruling in favour of the Council’s decision, in the amount of between PLN 50,000 to PLN 50 million.
The draft law is also intended to protect persons whose personal interests were violated by anonymous internet users. It provides for a new legal proceeding, the so-called “blind lawsuit”, under which a person can file suit for the protection of their personal rights without providing the defendant’s full personal details. According to the draft, it will be sufficient for the claimant to indicate the URL where the offensive content was published, the date and time of its publication, and the username or login of the person who published it.
The beginning of February brought another initiative of the Polish government aimed at the media market. The government plans to introduce a 7% up to 15% extra charge on advertising revenues obtained by media companies (publishers, TV and radio broadcasters, internet service providers). Revenues (defined as advertising income minus VAT) would be charged above certain thresholds. The bill should be considered as another attempt to attack the stability of independent media.
Agnieszka Wiercinska-Kruzewska is a co-founder and senior partner at WKB, head of intellectual property and TMT team, also closely cooperates with the M&A team. A graduate of the Faculty of Law and Administration at Adam Mickiewicz University in Poznań, As a holder of the Soros Foundation scholarship at the Central European University in Budapest she completed an LL.M course in international commercial law. She advises clients on all aspects of copyright, industrial property, consumer law, unfair competition, personal data protection, internet domains, press law and protection of personal rights. Agnieszka has also extensive experience in legal advisory services concerning sensitive product marketing and gambling. Within her areas of practice, apart from providing ongoing advice, she represents clients in litigation and arbitration proceedings. She has many years’ experience in the acquisition of companies on private market.
Written by Agnieszka Wiercinska-Kruzewska & Paulina Maslak-Stepnikowska
WKB Wiercinska, Kwiecinski, Baehr
One of the most discussed topics in Poland during the last year was the government’s proposed draft of amendments to the Polish Broadcasting Act aimed at implementing the new provisions of the EU AVMS Directive. The draft bill went beyond merely implementing the Directive’s provisions and introduced additional solutions. One of the solutions worth particular notice is the proposed domestic understanding of the revised country of origin rule.
Paulina Maslak-Stepnikowska is a member of the IP & TMT practice and specialises in intellectual property law, in particular copyright and industrial property, including in proceedings before national and international bodies. Paulina assists clients from the technology, retail, publishing and fashion industries (including press and book publishers, and shoes manufacturers) and the automotive market, advising on matters including national and international trademark protection, inventions, industrial and utility designs, as well as in contentious proceedings. She has advised entrepreneurs on developing strategies for the protection of products and technologies with regard to their commercialisation and distribution, as well as on infringements of their rights on the Polish and EU markets. Paulina has represented clients before courts, including the EU Trademarks and Designs Court in Warsaw, Polish Patent Office, EUIPO and WIPO. She is a recipient of a scholarship at the Ruprecht-Karls-Universität in Heidelberg and a graduate of postgraduate studies in intellectual property law at the H. Grocjusz Intellectual Property Rights Centre. She is also a co-author of a manual titled Turn Your Public On. How to plan an engaging communication: public relations, branding, social media (2019) and Would you like to receive a tailor-made offer?