Office of the Ombudsman

Aleja “Solidarności” 77, 

00-090 Warszawa, 

Poland

4 August 2022

Dear Polish Ombudsman, Marcin Wiącek

The undersigned organisations write to you regarding your decision to refrain from appealing the acquisition of regional newspaper publisher Polska Press by Poland’s state-controlled oil company PKN Orlen. Challenging this damaging decision is pivotal for upholding media freedom and competition in the media market in Poland. We therefore encourage you to reconsider an appeal before the deadline of 10 August. 

On 7 June 2022, the Warsaw regional court of competition dismissed the appeal of the Polish Human Rights Ombudsman brought by your predecessor Adam Bodnar against the takeover of the biggest and most influential regional publisher in Poland, Polska Press. Our organisations take note of your official statement issued on 3 August 2022. We support your call for a public debate about better and stronger guarantees of media pluralism. We hope that such calls will be listened to by, first among many, the European Commission in its upcoming proposal for a European Media Freedom Act. We remain at your disposal to engage in a dialogue on this issue. Nevertheless, we must again underscore that lodging an appeal to contest the regional court’s decision, and asking for the annulment of the Poland’s competition authority’s approval of the Polska Press acquisition by PKN Orlen, is currently of utmost importance. 

On 1 June 2021, ARTICLE 19 Europe submitted an amicus brief challenging the UOKiK’s decision which has been rejected by the court twice. It explained that the decision by Poland’s competition regulator, UOKiK was taken in violation of EU merger rules, as it completely failed to assess that the buyer, PKN Orlen, is de facto a state-controlled company (as confirmed, among others, by the same PKN Orlen in a recent merger case before the European Commission). In turn, this vitiated the entire assessment of the merger’s impact on competition in the Polish media market. Therefore, even without recurring to a media plurality test, ARTICLE 19 showed the court that the UOKiK’s decision should be annulled, and the competition assessment performed again, taking into due account the impact of the state control of Orlen. 

Furthermore, ARTICLE 19 Europe argued that as media pluralism is guaranteed both by the EU Charter of Fundamental Rights and the European Convention of Human Rights, the Polish State, as well as its independent authorities, have the duty to include it in their assessment.  The undersigned organisations support the legal arguments laid out by ARTICLE 19 Europe and underscore that the final ruling should comply with both EU law on mergers and with Poland’s obligations regarding European standards on media pluralism. 

In addition, our organisations have previously warned that such acquisition would hand the ruling Law and Justice (PiS) party greater indirect control over the regional media landscape ahead of the 2023 national elections as well as lead to a purge of critical editors and journalists in local newspapers. 

We are concerned that the acquisition of Polska Press by a state-controlled company headed by figures close to PiS leadership is a central element of PiS’s stated plans for “repolonization” of the media landscape. Though couched in language of pluralism and national sovereignty, these efforts have in reality been aimed at engineering the takeover of independent press by entities linked to the ruling party and strengthening the market influence of pro-government media. 

This approach emulates developments in Hungary where regional newspapers were acquired by business interests with strong ties to the government and eventually turned into mouthpieces for supporting Fidesz’s political agenda. These fears were not misplaced: PKN Orlen did not abide by the court’s decision to suspend the purchase for the time of hearing the appeal and either dismissed or pushed out more than a dozen editors-in-chief at newspapers owned by Polska Press since March 2021, with many more leaving in protest, leading to a visible shift in coverage, self-censorship, and a marked drop in editorial standards at some titles.

We respect the vital role the Polish Ombudsman plays in promoting and protecting the enjoyment and full realisation, by all people in Poland, of all human rights, which includes the right to information. In this regard, we strongly believe that your intervention and appealing the court’s verdict is indispensable to ensure that the pillars of media pluralism and media independence in Poland are safeguarded. We thus hope you will reconsider your decision. 

Our organisations will continue to closely monitor how the events unfold and would be glad to offer our expertise on media freedom and pluralism, as well as support in the appeal process. 

We ask you to take our concerns into consideration and look forward to your response. 

This statement was coordinated by the Media Freedom Rapid Response (MFRR), a Europe-wide mechanism which tracks, monitors and responds to violations of press and media freedom in EU Member States, Candidate Countries and Ukraine.

González, a Basque journalist specializing in post-Soviet countries who has been covering the war in Ukraine and the resulting humanitarian crisis from close to the border, was arrested by the Polish Security Services at some point overnight on February 27, according to media reports.

Since the war broke out, he had been reporting from the Polish city of Rzeszow as part of his work as a contributor to multiple Spanish news outlets including Público, LaSexta and the Basque publication Gara.

On February 28, his lawyer Gonzalo Boye confirmed on Twitter that his client had been detained. He later confirmed authorities had justified the arrest because González had “carried out actions against the Polish State”. Earlier in February, González was interrogated by Ukrainian security forces, accused of being “pro-Russian” because of his work with Gara and asked to leave the country.

“The arrest of Pablo González by Polish authorities is profoundly concerning”, IPI Deputy Director Scott Griffen said. “We call on authorities in Poland to immediately release González and to officially clarify the reason for his detention. Poland must allow all journalists to operate freely on the border with Ukraine.”

#Poland: IPI urges @PolandMFA to immediately secure release of #Spanish freelance journalist @PabVis, who was detained in #Rzeszow near #Ukraine border, where he has been reporting for @publico_es on arrival of refugees. Authorities must provide reasons for his arrest. @boye_g pic.twitter.com/EWQnqUuzvi

— IPI-The Global Network for Independent Journalism (@globalfreemedia) February 28, 2022

“My client, the Spanish journalist Pablo González, has been arrested in Poland for doing his job”, his lawyer said on Monday. “We demand that his physical integrity and his immediate release be guaranteed. Without freedom of the press, there is no democracy”.

According to Público, the journalist contacted them for the last time on Sunday night when he filed an article about people arriving from Ukraine to escape the war. During that conversation, González had said that he was retiring for the night to rest. He was last active on Twitter at 12.13am.

The journalist, who was born in Moscow, has long studied the post-Soviet space and is currently pursuing a doctorate at the University of the Basque Country. He participates in the GeopolitikaZ IT/GI podcast, in which he analyzes international politics in Eastern Europe. Before the war broke out, he travelled to Ukraine to report on rising regional tensions.

The journalist was previously arrested in Ukraine on February 6 while reporting from Donbas for various Spanish media. He was contacted by Ukrainian security services and requested to come to Kyiv to be questioned. After travelling to the capital, González was interrogated for several hours and accused of being “pro-Russian”, according to Spanish reports.

According to those reports, his work with the left-wing Basque newspaper Gara, the successor to the leftist and Basque nationalist newspaper Egin, was cited as the reason for the suspicions. His command of the Russian language and a credit card from Caja Laboral, a Basque credit union, were also cited as reasons for his alleged “pro-Russian” views.

After questioning, González said he was “invited” to leave the country by the security services, though no formal expulsion order was issued by Ukrainian authorities. During this time, he raised his case with the Spanish embassy in Kyiv and contacted the consul general. Público carried out negotiations on his behalf with the Ministry of Foreign Affairs.

At the same time, several members of his family and friends in Spain were approached by officers from the National Intelligence Center (CNI), Spain’s main intelligence service, who questioned them about his alleged links with Russia. According to Público, some of the agents described Gara as “a pro-ETA media outlet subsidized by Russia”. They also accused the journalist of “passing information to Russia”.

As the invasion of Ukraine began on February 25, González left the country and travelled to Warsaw, from where he headed back to near the border with Ukraine to cover the escalating humanitarian crisis.

Since the arret, his lawyer said he had not been able to communicate directly with his client, who remains in detention. Boye told media he had been informed by Polish authorities that the arrest is linked to the previous interrogation in Ukraine. It is understood the arrest came after a follow-up request from the Ukrainian intelligence services.

The Basque Association of Journalists, Kazetariak, issued a statement demanding his immediate release. Multiple Spanish politicians also called on Polish authorities to release the journalist. Spanish authorities have confirmed they are seeking clarifications about the reasons for the arrest.

This statement by IPI is part of the Media Freedom Rapid Response (MFRR), a Europe-wide mechanism which tracks, monitors and responds to violations of press and media freedom in EU Member States and Candidate Countries.

The MFRR is concerned by the abusive legal actions targeting the journalist for his investigations and that his dismissal may be due to the financial costs to the outlet which these SLAPP lawsuits are accruing. If this is the case, it could send a signal that journalists in Poland who are targeted with SLAPPs for their investigations into sensitive issues will be left to face such lawsuits without the support of their employers and have a chilling effect on press freedom in the country.

Grzegorz Rzeczkowski is a seasoned reporter who investigated the wiretapping scandal that led to major political changes in  Polish politics in 2014. As a result of his coverage on abuse of power issues, the journalist is facing four SLAPPs.

On 19 January Rzeczkowski announced on Twitter that his contract at Polityka had been abruptly terminated and he would be leaving the outlet in April. Rzeczkowski was notified by email about the contract termination and was given a vague explanation of the employer’s decision. Rzeczkowski worked at Polityka for 12 years  and has not received any prior warning that would have indicated the employer’s intentions. In an interview with Wirtualnemedia.pl, Jerzy Baczyński, the editor-in-chief of Polityka was reluctant to disclose the reasons that led up to the dismissal but noted that the decision wasn’t motivated by staff cuts. He went on to say, “we are convinced that a journalist with such experience and achievements will easily position himself in the market”.

Given the four ongoing legal proceedings against Rzeczkowski and Polityka, the journalist is now put in an extremely difficult financial situation. Up until his contract’s termination, all legal fees and costs were covered by the employer. Since Polityka let go of its reporter, it is uncertain whether the outlet will continue to support Rzeczkowski’s legal fees.

Rzeczkowski faces four SLAPPs, both civil and criminal defamation lawsuits. Three of them were filed following the journalist’s coverage on the so-called wiretapping scandal that led to the demise of the government formed by Civil Platform (PO) and paved the way for the Law and Justice (PiS) party’s victory in the presidential and then parliamentary elections in 2015 and 2016, respectively.

Two cases against Rzeczkowski were initiated due to his articles discussing links between Marek Falenta, key figure in the “wiretapping scandal”, and the Russian mafia and secret service. In addition, Rzeczkowski, together with the editor-in-chief and the outlet itself are also sued by Anna Hofer, the State Prosecutor, who was promoted to this position when PiS came to power. In one of his articles, Rzeczkowski claimed that the state prosecutor didn’t investigate the involvement of the people with close ties to PiS in the wiretapping scandal and that she omitted to investigate the Russian influence on the election results. In 2019, the former head of the Military Counterintelligence Service brought a private criminal defamation case against the journalist, following his coverage on career advancement of people close to the former Minister of Defence, Antoni Macierewicz.

In a conversation with ARTICLE 19, Rzeczkowski underscored that the legal costs have already exceeded ten thousand Euros – an amount impossible to cover by himself. Rzeczkowski also mentioned that the SLAPPs against him have caused him great emotional distress and emphasised the importance of having his employer’s financial support and solidarity.

The MFRR expresses concern over the ongoing legal harassment against Rzeczkowski as well as his abrupt dismissal. Despite the lack of clarity to what extent the dismissal might have been motivated by the drawn-out and costly lawsuits, this sets a concerning precedent for the protection of journalists in Poland. SLAPPs are vexatious lawsuits that became an all-too-common tool aimed at silencing independent voices, dissuading them from hard-hitting reporting on critical issues and exhausting their financial resources. If journalists covering controversial yet crucial topics start feeling a legitimate threat and lack of proper support, they may eventually turn to self-censorship or even abandon their investigations. The undersigned organisations stand in solidarity with Grzegorz Rzeczkowski and call upon the media outlet and journalists’ associations in Poland to provide necessary support to the journalist throughout the legal proceedings.

This statement was coordinated by the Media Freedom Rapid Response (MFRR), a Europe-wide mechanism which tracks, monitors and responds to violations of press and media freedom in EU Member States and Candidate Countries.

Amid the ongoing erosion of media freedom in Poland, we believe that this verdict sets a dangerous precedent which may further facilitate the attempts to muzzle critical media coverage on public officials in the country. The MFRR reiterates that the state should guarantee an enabling working environment for journalists in Poland in which they are able to report on vital, even controversial issues and raise difficult questions without a fear of legal harassment.

On 24 November 2021, the District Court for Warsaw-Śródmieście, convicted Siedlecka, a journalist of Polityka, a weekly news magazine, of criminal defamation in the case brought by two judges, Konrad Wytrykowski and Maciej Nawacki, acting in their private capacity. The court ordered the journalist to pay 5600 zł which consists of a fine, a compensation for both plaintiffs, a payment to the National Treasury and the cost of the trial. As the ruling was delivered by a court of first instance, the journalist may appeal the guilty verdict.

Siedlecka is one of the journalists who tackled in their reporting the issue of a so-called “hate campaign affair” that broke out in Poland in 2019. At that time, a journalistic investigation led by a digital media outlet Onet.pl revealed that the representatives of the Ministry of Justice, including deputy justice minister Lukasz Piebiak, orchestrated and coordinated a hate campaign aimed at several selected judges who openly opposed the controversial judiciary “reforms” pushed through by the ruling Law and Justice (PiS). The “reforms” – in particular, creation of the disciplinary chamber – form an essential part of plans to “overhaul the judiciary” and were found incompatible with EU law by the European Court of Justice. In response to the ruling, Poland indicated its intention to dismantle the disciplinary chamber in the foreseeable future.

Siedlecka referred to the details of the investigations carried out by journalists of Onet.pl in her Twitter and blog posts as well as in three articles published by Polityka. In one of the pieces, Ms. Siedlecka called Wytrykowski and Nawacki, two judges allegedly involved in the hate campaign – “haters”. As a result, Wyrzykowski, a member of the disciplinary chamber of the Supreme Court and Nawacki, of the National Council of the Judiciary, who were both promoted to their current positions due to personnel changes stemming from the controversial judiciary “reforms”, filed a defamation lawsuit against her with the initial demand for 20 thousand złoty compensation, 24 hours of community work, and imprisonment for four months. During the trial, the court dismissed the defence’s motions to find out whether the plaintiffs were members of the aforementioned “hate group” operating in the Ministry. The judge explained that “the trials under Art. 212 of the Penal Code regarding the journalists focus on assessing the credibility of a reporter, not investigating the truth”.

Siedlecka wasn’t present in the court while the judgement was delivered. She did, however, comment on the case and the decision online. “The verdict may be perceived as a restriction of freedom of speech”, she wrote in a short opinion piece published on her blog, noting that she “does not know the details of the justification” of the court’s decision. She calls herself “the first person convicted in the hate campaign affair”.

“I did not insult the plaintiffs, I did not mock them. I simply expressed my opinions. The plaintiffs are high officials, they must thus be prepared – which was repeatedly stated by, inter alia, The Court of Human Rights – to be a subject of criticism”, Ms. Siedlecka stressed in the comment.

The MFRR remains highly alarmed by the continuing deterioration of media freedom in Poland and multi-pronged attacks backed by the authorities aimed at stamping out critical voices. There is a justified fear that this verdict against Ewa Siedlecka might pave the way for a wider criminalisation of expressing an opinion based on information present in the public space. In addition, legal proceedings against a particular journalist may exert a major chilling effect on the journalistic community as a whole.

We have been observing the increasing use of defamation lawsuits targeting journalists that aim to dissuade them from reporting on a controversial story and drain them both psychologically and financially. We find the recent defamation conviction of Ewa Siedlecka deeply distressing, in particular given the fact that she mostly quoted the existing reporting and not formed accusations on her own. The MFRR stands in solidarity with the journalist and her inalienable right to express opinions, especially in regard to the activity of public officials.

This statement was coordinated by the Media Freedom Rapid Response (MFRR), a Europe-wide mechanism which tracks, monitors and responds to violations of press and media freedom in EU Member States and Candidate Countries.

If the prosecutor issues a second demand for Włodkowska to reveal the identity of her source for a report on the investigation into the assassination of the city’s mayor, and she refuses to comply, she could face a prison sentence of up to 30 days. The threat of imprisonment puts undue pressure on Wlodkowska and, beyond her, has a chilling effect on the journalistic community in Poland.

The unjustified demand for the disclosure of Włodkowska’s source stems from an article she published in Gazeta Wyborcza and its supplement Duży Format in January 2020, entitled “Killer of Paweł Adamowicz: I will sit for two years and leave“. The report, published on the first anniversary of the murder of the mayor, published a fragment of a letter written by the alleged killer while in detention in which he said he would face a milder sentencing because he had been assessed as criminally insane.

At the time, the initial investigation by a group of expert psychiatrists had concluded that the man, who is accused of fatally stabbing Adamowicz on stage at a Christmas charity event in December 2019, was mentally ill at the time, meaning he could not face criminal liability. The ruling Law and Justice (PiS) party has claimed the liberal mayor’s killing was not premeditated and that the murder was instead the act of a mentally deranged individual.

Włodkowska’s reporting, and the information provided by an anonymous source with knowledge of the psychiatric assessment, presented a different version of events: that the assailant was fully conscious of his actions and had been planning the murder since December 2018. The report caused a scandal in Poland and led to significant media attention and criticism of the government. Since then, additional assessments have deemed the defendant mentally fit enough to stand trial and have suggested that his drive to murder Adamowicz may have been fuelled by reporting by the government-controlled state broadcaster, Telewizja Polska.

Following publication of the article, the Gdańsk prosecutor’s office initiated an investigation and Włodkowska was questioned. She declined to disclose her source, who believes their safety would be jeopardised if they were identified. After multiple failed attempts to pressure the journalist into revealing her contact, the prosecutor appealed to a court to try and force the disclosure. In January 2021, the Gdańsk district court sided with the prosecutor and ordered her to reveal the source. After multiple appeals, the verdict was upheld by the Court of Appeal in Gdańsk on 15 October.

Two weeks later, the District Prosecutor’s Office again interrogated Włodkowska about the source. With the backing of her newspaper, she again refused to reveal the source’s identity, citing journalistic confidentiality. On 5 November, she was ordered to pay a fine of PLN 500 (€108), which she rejected. An appeal is currently underway. If the prosecutor again orders her to reveal the source, and she refuses for a second time, under the Polish criminal code she could be fined again and/or jailed for up to 30 days.

If this happens, Poland could become the only EU member state to have a journalist in prison for doing their job. The protection and confidentiality of journalists‘ sources is a fundamental element of press freedom. It allows the media to report on matters of public interest without fearing that confidential sources or whistleblowers will face retaliation, and helps ensure that people with information feel comfortable approaching reporters. It is also a right protected under Article 10 of the European Convention on Human Rights and repeatedly recognised by the Council of Europe and the OSCE. Exceptions to this rule are extremely rare and European jurisprudence is clear: such disclosure can only be justified if there is an overriding public interest for the source’s identity to be revealed.

Our firm assessment is that this case comes nowhere near the threshold required to force the disclosure of a journalistic source. Rather, this prosecution appears aimed at punishing a journalist working for the country’s biggest critical newspaper over a story which undermined the prosecutor’s office and damaged the credibility of the state’s probe into Paweł Adamowicz’s murder. If Włodkowska is jailed, it would have a chilling effect on the country’s entire journalistic community and lead to a further deterioration in Poland’s standing on the freedom of the media. We urge the district prosecutor to drop the legal case immediately.

Our organisations stand in solidarity with Katarzyna Włodkowska. If she is arrested for upholding basic journalistic ethics and refuses to disclose her source, we stand ready to support Gazeta Wyborcza with further legal appeals, including taking the case to the European Court of Human Rights. In the meantime, we urge international human rights bodies and the Council of Europe’s Commissioner for Human Rights to intervene immediately to ensure Włodkowska is not jailed for doing her job.

This statement was coordinated by the Media Freedom Rapid Response (MFRR), a Europe-wide mechanism which tracks, monitors and responds to violations of press and media freedom in EU Member States and Candidate Countries.