An important issue under the amended Press Law, which was not well-received in journalism circles, has come back to life. Marek Szydłowski from the Technology, Media and Telecommunications practice group at Wardyński & Partners comments on a December ruling by the Polish Constitutional Tribunal.
On 1 December 2010 the Constitutional Tribunal held that Art. 46 of the Press Law, which imposes criminal liability on an editor-in-chief for refusal to publish a correction, is unconstitutional. The basis for the ruling was the lack of a clear distinction between a correction and a response to press criticism, making it unclear what an editor-in-chief is or is not required to publish.
There are several reasons for this situation. First, the dividing line between a correction and a response to press criticism is in fact vague. The law states that a correction has to do with facts and a response to press criticism has to do with assessments violating a person’s reputation. In practice it is hard to distinguish the two cases, because facts are rarely presented without being coloured by an assessment in some way. Second, based on the view presented by some legal commentators as well as the Polish Supreme Court, a “subjective” theory of corrections has come into vogue, under which an editor-in-chief should correct not only a news item that was objectively untrue, but also one that is untrue in the opinion of the person submitting the correction. This theory blurs even further the distinction between a correction and a response to press criticism.
Sometimes a person demanding correction of a factual assertion is really seeking to “correct” an interpretation of a fact. A statement of an objectively existing fact would take the form “the cat is on the mat” or “there is no cat on the mat.” But the statement “Smith is a thief” or “Smith is not a thief” begins to enter into the sphere of interpretation. If Smith is caught red-handed, but has not yet been convicted of theft, whether Smith should be regarded as a thief or not is open to interpretation.
Thus the Constitutional Tribunal correctly held that an editor-in-chief should not be subject to penal sanctions for failing to publish a correction, when it cannot be known for sure whether the item is a correction or a response to press criticism. The tribunal gave the Polish Parliament 18 months to correct this provision. This means that there will certainly be an amendment to the Press Law. It may come in the form which the Ministry of Culture and National Heritage had already begun work on earlier last year, providing for only one type of correction, which might or might not resolve the problem in practice.
There should certainly be no fear that corrections will no longer be published merely because the penal sanction is lifted. The institution of corrections will survive, if for no other reason, because the Audiovisual Media Services Directive, which was required to be implemented in Poland by December 2009, provides for a “right of reply”—something between a response and a correction—by a person affected by the broadcast of “incorrect facts” in audiovisual media.
Because a right of reply is required with respect to audiovisual media, and the Press Law also applies to audiovisual media, the Polish regulations concerning corrections must remain, but should be made more precise. Clearly they will not entail criminal liability, but the criteria for corrections will be regulated in some way in the law. Amendment of the Press Law would be an excellent occasion to bury the subjective theory of corrections once and for all.