POLAND

Expert assessments: Sanctions

This statement seems to be quite accurate despite not using the exact wording of the legislation.191 The content rules referenced are typical quota and programming obligations for all EU countries which have either implemented or are in the process of implementing the EU Audiovisual Media Services Directive. As correctly noted above, the National Broadcasting Council (KRRiT)192 can impose fines of up to 50 percent of the broadcasters’ annual fee for breaches to various content- and advertising-related provisions in the 1992 Broadcasting Act.193 Fines can even be imposed on individual “directors of broadcasting activities” for failing to carry out the National Council’s decisions, but that fine cannot exceed that individual’s six-month remuneration.194 However, there have not been any cases when a broadcaster was fined 50 percent of its annual frequency usage fee for breaching programming requirements or when an individual broadcaster was fined in the way described above. It should be noted, too, that the KRRiT and the Broadcasting Act regulates private and commercial television and radio broadcasting, including public service media, but not print or online press.195 In addition, the content regulations detailed in the Broadcasting Act specifies different obligations for TV versus radio as well as for commercial versus public broadcasting.

The provision cited by the Hungarian government refers to Article 53(1) of the 1992 Broadcasting Act which empowers the National Broadcasting Council (KRRiT) to sanction broadcasters for breaches to specific content regulations.196 These are: programme quota obligations for Polish-language programmes (33 percent of transmission time), European works produced by independent producers (10 percent of transmission time), and European works (50 percent of transmission time). Broadcasters can also be sanctioned for breaching obligations regarding the protection of minors, the protection of moral values and social interest and non-discrimination, the respect for Christian values, protection of health, safety and the natural environment, and monitoring and disclosure rules.197

The KKRit’s sanctioning powers include: warning/formal objections,198 penalty payments/fines,199 and the suspension/revocation of licenses.200 The process of sanctioning usually starts with warnings to cease the practices in breach of the relevant content regulation. In cases of repeated breaches, the maximum fines can be applied, which depends on the broadcaster’s frequency usage fee. The usage fee depends on the reach of the broadcaster’s programming and therefore fines can vary considerably. Hence, radio broadcasters pay significantly less than TV broadcasters. For example, a nationwide TV broadcaster transmitting its programme terrestrially can pay up to 2 million PLN (EUR 502,500), with the exact amount dependent on whether the programme reaches less than 500,000, between 500,000 and 5 million, or more than 5 million viewers.201 A nationwide radio broadcaster transmitting its programme terrestrially can pay up to 960,000 PLN (EUR 242,400).

Maximum fines are rarely imposed on broadcasters as a result of breaches to content regulations. An exception was in 2006 and the high penalty (EUR 125,628) imposed on the commercial broadcaster Telewizja Polsat for broadcasting a programme in which a disabled journalist working at Radio Maryja was ridiculed and satirized by a talk show host and his guest. In practice, however, higher financial sanctions are most often imposed on broadcasters for breaches to limits time of advertising spots under Article 16(2), which states that advertising cannot exceed 15 percent of daily transmission time or 12-minutes each hour, in compliance with the EU Audiovisual Media Service Directive. In 2010, for example, a penalty of 12,800 PLN (EUR 3,216) was imposed on the commercial broadcaster Telewizja Polsat for breaching the Article 16(2) for transmitting advertising that exceeded 12-minutes hourly and 15 percent of the daily limit. Also in 2010, the Warsaw Province of Redemptorists was called on to cease practices in the programme of Catholic Radio Maryja which were considered to be “surreptitious advertising.”202 However there have not been any cases when a broadcaster has been fined 50 percent of its annual frequency usage fee for breaching programming requirements. It is also important to recognise the political controversies surrounding the composition of the KRRiT’s membership, which has undermined the neutrality of the authority as a regulatory body. That is, political affiliations have influenced sanctioning decisions especially with regards to interpretation of respect for “the religious beliefs of the public and especially Christian system of values.”203 For instance, in November 2010, the KRRiT called on the Polish Television (a public service broadcaster) to cease practices in breach of Article 21(1)204 of the Broadcasting Act concerning the portrayal of events related to a removal of a cross from a front of the Presidential Palace to the St. Anna’s Church.205 The cross was placed in a front of the Presidential Palace after the fatal crash of the presidential airplane in April 2010. The place served to organize commemoration meetings of supporters of the former President Kaczynski. A newly nominated President Komorowski decided to replace the cross to the St. Anna’s Church. The sanctioning decisions of the chairman of the National Council may be appealed in the Regional Court.206 The appeal suspends the decision. The Regional Court’s decision can also be further appealed. The KRRiT’s activities and decisions are also controlled through a reporting obligation to the Sejm, Senate and the president in the form of an annual report on its activities during the proceeding year, as well as information concerning key issues in radio and television broadcasting.207 This includes also description of the use of sanctioning powers by KRRiT. In a case of rejection of the report by both the Sejm and the senate, the term of office of KRRiT members expires,208 but only if this decision is approved by the president.209

190 “Criticism 17,” in “Criticisms and answers formulated on the subject of the proposed media act examined in a European context,” Ministry of Public Administration and Justice, December 20, 2010, available at:http://www.kormany.hu/en/ministry-of-public-administration-and-justice/news/criticisms-and-answers-formulated-on-the-subject-of-the-proposed-media-act-examined-in-a-european-context 191 The cited provision likely refers to Article 53(1) of the Broadcasting Act (Ustawa o Radiofonii i Telewizji), adopted 29 December 1992, Official Journal, 1993, No 7, item 34, as amended. Unofficial English translation available at: http://media.parlament.org.ua/uploads/files/f92.pdf. 192 National Broadcasting Council (KRRiT): http://www.krrit.gov.pl/bip/Default.aspx?alias=www.krrit.gov.pl/bip/eng 193 See content regulations and programme quotas in Chapter 3, “Radio and Television Programme Services,” Articles 13 to 20 of the Broadcasting Act. Violations to Articles 10(4) and 15 – 18 carry potential sanctions. Unofficial English translation available at: http://media.parlament.org.ua/uploads/files/f92.pdf. 194 Broadcasting Act, Article 54(1), unofficial English translation available at: http://media.parlament.org.ua/uploads/files/f92.pdf. 195 Broadcasting Act, Article 5: “The National Broadcasting Council (…) shall hereby be established and shall constitute the state authority competent in matters of radio and television broadcasting.” Unofficial English translation available at: http://media.parlament.org.ua/uploads/files/f92.pdf. 196 Broadcasting Act, Article 53(1), unofficial English translation available at: http://media.parlament.org.ua/uploads/files/f92.pdf, 197 See the following articles under the Broadcasting Act: Article 15 for rules on programming quotas; Article 15a for rules on works by independent producers; Article 18(2) for regulations on European works; Article 18(4) – 18(6) for regulations on protection of minors; Article 18(1) for rules on moral values and social interest and non-discrimination; Article 18.2 for Christian values; Article 18.3 protection of public health and safety; Article 20 and 20a on monitoring and disclosure rules. Unofficial English translation available at: http://media.parlament.org.ua/uploads/files/f92.pdf. 198 Broadcasting Act, Article 10(2), 10(3), 10(4) , unofficial English translation available at: http://media.parlament.org.ua/uploads/files/f92.pdf. 199 Broadcasting Act, Article 53 and 54, unofficial English translation available at: http://media.parlament.org.ua/uploads/files/f92.pdf. 200 Broadcasting Act, Article 38(1) and 38(2), unofficial English translation available at: http://media.parlament.org.ua/uploads/files/f92.pdf. 201 The exact algorithm for determining broadcaster’s usage fee is described in the KRRiT’s “Regulation of the National Broadcasting Council,” 4 February 2000, available at: http://www.krrit.gov.pl/Data/Files/_public/pliki/regulations/4_february_2000_nowy.pdf. 202 The Catholic Redemptorist Order owns a broadcasting license for broadcasting Radio Maryja as a “social broadcaster.” Social broadcasters have a special legal status in Poland, in which they are exempted from paying a license fee, but cannot transmit advertising. 203 Broadcasting Act, Article 18(2), unofficial English translation available at: http://media.parlament.org.ua/uploads/files/f92.pdf. 204 According to Article 21(1) of the Broadcasting Act: “Public radio and television shall carry out their public mission by providing, on terms laid down in this Act, the entire society and its individual groups with diversified programme services and other services in the area of information, journalism, culture, entertainment, education and sports which shall be pluralistic, impartial, well-balanced, independent and innovative, marked by high quality and integrity of broadcast.” Unofficial English translation available at: http://media.parlament.org.ua/uploads/files/f92.pdf. 205 The cross was placed in a front of the Presidential Palace after the crash of the presidential airplane on April 10, 2010. The place served to organize commemoration meetings of supporters of the former President Kaczynski. A newly nominated President Komorowski decided to replace the cross to the St Anna’s Church. 206 Decisions of the Chairman of the National Council issued under Articles 10(4) and Articles 53 and 54 of the Broadcasting Act may be appealed against to the Voivodship Court in Warsaw. 207 Broadcasting Act, Article 12(1), unofficial English translation available at: http://media.parlament.org.ua/uploads/files/f92.pdf. 208 Broadcasting Act, Article 12(4), unofficial English translation available at: http://media.parlament.org.ua/uploads/files/f92.pdf. 209 Broadcasting Act, Article 12(5), unofficial English translation available at: http://media.parlament.org.ua/uploads/files/f92.pdf.