Protecting Poland’s Public Media

Under Tusk’s government, political considerations often overshadowed strict adherence to the law in public media changes. However, public media and the Polish Press Agency showed improvement compared to their propagandist role under the previous administration. The government’s true commitment to meaningful media reform will be tested through its approach to revising legislation and following a constitutional procedure to appoint public media boards.

Rebuilding the rule of law

One of the fundamental issues in discussions about the process of restoring the rule of law in a country that has experienced its systemic deficiencies for years is whether the new authorities, in pursuing this goal, can bend, bypass, or violate the law. The principled approach clearly states that they cannot. There should be no leniency in evaluating the actions of the new government.

In practice, as we see in the case of Poland, the process of rebuilding the rule of law after years of backsliding on previously achieved standards is burdened by systemic and political constraints.

As Wojciech Sadurski has explained, this is not a case of a complete overhaul of the political system, such as the transition from communism to democracy. At the same time, we are not dealing with a typical democratic transfer of power following elections. The previous PiS party government embedded loyalists in key institutions, often for long terms. After the change in power, their role is to obstruct reforms, defend the “legacy” of the previous authorities, and – an important social and emotional aspect – protect their personal life choices and professional reputations.

Additionally, two systemic and political factors are particularly relevant in Poland. First, President Andrzej Duda’s veto power, as he is set to complete his second and final term in May 2025. Second, the possibility of referring cases to the Constitutional Tribunal, entirely appointed during PiS rule, which can be utilized by opposition MPs from PiS as well as by the president.

These inherited systemic constraints create a strong temptation for the governing authorities to bend the rules in order to achieve results. This is especially true given that the previous populist government accustomed people to quick policy delivery: moving fast and breaking things. Now, public expectations are for them to move fast and repair things.

This conundrum is well-illustrated by the process of reforming public media during the first year of Donald Tusk’s current government.

Two Distinct Approaches by the Government to Judicial and Public Media Reforms

In its first year, Tusk’s government adopted qualitatively and temporally distinct approaches to reforms in public media and the judiciary.

In the judiciary, Minister of Justice Adam Bodnar implemented substantive changes, such as ending the use of the disciplinary system to harass judges defending the rule of law. He replaced court presidents in compliance with established procedures, which, unlike under his predecessor Zbigniew Ziobro, was a time-consuming and rules-abiding process. Bodnar also announced organizational and managerial reforms within the judiciary and established codification commissions tasked with proposing reforms to civil and criminal law, family law, and the structure of the courts and prosecution service.

Parliament passed laws on the National Council for the Judiciary and the Constitutional Tribunal, but these were referred to the Constitutional Tribunal by President Duda. The president’s role as a brake on reform – unsurprising given his active involvement in dismantling the rule of law since the start of his first term in 2015 – has slowed progress on reestablishing the rule of law. This has, however, created room for deliberation and consultation with domestic stakeholders and institutions like the Venice Commission and OSCE/ODIHR. How much of these recommendations will be implemented under domestic pressures remains uncertain.

A year after taking office, the government has yet to present legislative proposals to address the status of Supreme Court judges and lower court judges appointed under flawed procedures (the so-called “neo-judges”). The motivation for rapid legislative action has also been weakened by the European Commission’s political decision, supported by member states, to unblock funds previously withheld under the conditionality principle of the Recovery and Resilience Facility and cohesion funds under the Common Provisions Regulation, as well as to end the Article 7 TEU procedure against Poland. On the other hand, one might hope that the mechanisms eventually developed will be among the best possible, as Poland faces many unique legal challenges – a fact acknowledged by the Venice Commission itself.

Make It or Break It: Two Approaches to Reforming Public Media and the Judiciary

In contrast to the slower-paced reforms in the judiciary, the Tusk government opted for swift and radical action in reforming public media during its first year.

During the 2023 election campaign, Tusk’s party, the Civic Platform, promised to end hate speech on public television, depoliticize and democratize public media, and abolish the National Media Council (RMN). The RMN was an additional media regulator introduced in 2016 by the PiS government to oversee public media, which had been turned into a propaganda machine.

The government’s immediate steps can be seen as a rapid fulfillment of election promises. Furtermore, they addressed the political imperative of securing the legitimacy of the new administration’s reforms. Public media still controlled by PiS would undoubtedly have attempted to delegitimize the new administration. Lastly, the urgency was heightened by the upcoming local elections in spring 2024 and the European Parliament elections later that year. Politically, time was of the essence. The reforms were spearheaded by seasoned Civic Platform politician Bartłomiej Sienkiewicz, the Minister of Culture and Heritage.

According to the Polish constitution, the boards of public media companies and the Polish Press Agency (PAP) should be appointed by the National Broadcasting Council (KRRiT), an independent media regulator. However, under PiS rule, this authority was transferred in 2016 to the RMN, which contradicts the constitution. Both regulatory bodies are appointed for six-year terms, with the most recent appointments made in 2022. Without removing members of these media regulators, it would have been impossible to change the leadership of public media organizations.

Rather than attempting to amend the law to restore KRRiT’s authority to appoint public media boards, the government argued that, under the Commercial Companies Code, the Minister of Culture could dismiss the boards by exercising shareholder rights on behalf of the state, the owner of public media companies. However, treating public media companies as regular commercial entities disregards their public mission.

In December 2023, new management boards appointed by the Minister of Culture arrived at the headquarters of public media companies and the press agency. PiS appointees panicked, and the party attempted to occupy the headquarters. In response, the Tusk government passed an amendment to the budget law, increasing funding for public media, which had already ballooned under PiS. However, President Duda vetoed the amendment, effectively cutting off funding for state broadcasters, including central and regional stations.

Subsequently, the Minister of Culture initiated the formal dissolution of public media companies and the Polish Press Agency, a decision confirmed by entries in the National Court Register in April 2024, although some court clerks initially resisted registering changes in supervisory boards.

Of course, the government does not intend to actually dissolve public media companies. Both the public broadcasters and the Polish Press Agency continue to operate. Many propagandists from the PiS era have resigned or been dismissed. Public media has seen the return of journalists who worked there before the PiS era, alongside hires from Poland’s dynamic private media market.

The new leadership of public television has pledged to show the world without propaganda, aiming to reflect political and societal developments with accuracy. After a year, however, public television sometimes offers a slightly overly flattering and blurred image of the new government. Nonetheless, it avoids demonizing or distorting the opposition, including PiS. Today’s public media are far from the propaganda machines they were under PiS. Meanwhile, the Polish Press Agency operates independently, providing honest reporting, even on issues unfavorable to the current government.

However, the legal assessment of these changes – particularly in the early stages, such as the replacement of supervisory boards – has been largely negative. Human rights organizations, including the Helsinki Foundation for Human Rights, have raised concerns about the legality of these reforms. On the other hand, some constitutional experts argue that the reforms serve a legitimate constitutional goal: ensuring citizens’ right to reliable information.

Accountability

One of the key pillars of the current government’s program, particularly for Tusk’s party, is holding the previous administration accountable for abuses of power and legal violations.

As I explained over a year ago, it is possible to bring the Chairman of the National Broadcasting Council (KRRiT) before the State Tribunal, as  this requires only a simple majority in the Sejm. Maciej Świrski, the chairman of KRRiT since 2022, continues to pursue a policy of attacking private media critical of PiS. This includes arbitrarily imposing hefty fines on private media outlets for their reporting, exploiting vaguely worded provisions of the 1992 Broadcasting Act. Świrski has also withheld funds meant for regional public media stations by redirecting subscription fees allocated to those stations into a court deposit.

On May 24, members of Civic Platform submitted a motion in the Sejm to bring Świrski before the State Tribunal on 11 charges. At the time of writing, the proposal is under review by the Constitutional Responsibility Committee. Once the State Tribunal concludes that a KRRiT member has committed a constitutional offense, the appointing body may dismiss them.

The government also plans to reduce the budget of the KRRiT in the 2025 budget bill, as well as the budgets of other institutions dominated by individuals appointed by the PiS, such as the Constitutional Tribunal and the National Institute of Remembrance. The funds are intended to be redirected towards science and healthcare.

The government has also moved to address the composition of the National Media Council (RMN). Under the RMN Act, the council consists of five members, each serving six-year terms. Three are appointed by the Sejm, and two by the President of Poland, following nominations by the largest opposition parliamentary clubs.

In October, the Sejm dismissed Krzysztof Czabański, who had chaired the RMN since its creation in 2016. The dismissal was based on his alleged violation of Article 5(3) of the RMN Act, which prohibits RMN members from simultaneously serving in entities that act as media service providers or produce radio or television programs. Czabański serves on the board of the Lech Kaczyński Foundation, which is a shareholder in Srebrna and Srebrna-Media, companies with stakes in outlets favorable to PiS.

Currently, the RMN includes two members appointed by PiS in July 2022: Piotr Babinetz and Joanna Lichocka. President Duda appointed Marek Rutka (in 2022) and Robert Kwiatkowski (in 2020), both politicians from the Left party, which is now part of Tusk’s coalition government. In December , the current ruling majority appointed Wojciech Król, a member from Civic Platform to the RMN. Now, the RMN holds a majority aligned with the government. It enables it to vote for  replacing the management of public media and the Polish Press Agency.

However, this should not happen. According to the constitution, it is the KRRiT – not the RMN – that appoints these management boards. The RMN itself should be abolished. To paraphrase Cato the Elder: Ceterum censeo Radam Mediorum Nationalium esse delendam (Moreover, I consider that the National Media Council must be destroyed).

Promised Reform

The government promised to abolish the National Media Council (RMN), a move that could be quickly achieved by passing a single bill. However, no such act has been presented in the current term of the Sejm, possibly because President Duda would likely veto it. Nevertheless, even attempting to introduce such a bill would have strengthened Tusk’s government’s legitimacy as it works to restore the rule of law and bring the actions of state institutions into line with the constitution. Abolishing the RMN is intended to be part of a broader media reform.

The government promised to enact comprehensive media legislation, partly due to the need to align national laws with technological developments (the Broadcasting Act of 1992 is in force), fulfill European legal requirements (such as the European Media Freedom Act), and repair the rule of law.

However, it remains unclear which specific laws would be changed – whether it would involve amending or replacing the Broadcasting Act. In October, Prime Minister Tusk promised to “liberate” public media from the partisan model. Work on media reform is ongoing under the Ministry of Culture, now headed by the well-known cultural manager Hanna Wróblewska, who replaced Minister Sienkiewicz after his election to the European Parliament. The Ministry has so far presented the key objectives of the reform:

• A change in the functioning of the KRRiT to ensure its apolitical, pluralistic composition, with limitations on the Chairman’s discretion. Any decisions by the Chairman will require prior approval by the KRRiT.
• Reform and strengthening of the competencies of public media’s program councils, updating the rules for the appointment and functioning of supervisory boards and managements of public radio and television companies, and separating editorial functions from management.
• Introducing changes to the press market only in the minimal scope required by the EMFA.
• Implementing transparency in the spending of public funds on media advertising through new legal regulations.
• Banning local government from owning or publishing media.

The Ministry has also conducted public consultations. A total of  107 responses have been received, including from media regulators, the Office of Competition and Consumer Protection, public media, as well as local media, NGOs, and business organizations. Inter-ministerial consultations are ongoing. A draft bill is expected to be presented in early 2025.

The Reception

As noted by András Jakab, post-socialist legal cultures are characterized by an ambivalent approach to law, often involving contradictions. Even voters of pro-rule-of-law parties, like those in Poland’s ruling coalition, may accept changes that are legally questionable, especially in procedural terms, if the outcomes align with their values or understanding of what is necessary to restore not only the rule of law but, more broadly, democracy. According to a poll conducted in January 2024 by the renowned pollster CBOS, over half of respondents (53%) supported the government’s public media policy, while more than a third (36%) opposed it. However, lawyers are less likely to view it this way, as their priority is the evaluation of legality and proportionality of the means applied.

In the public media changes during the first year of Tusk’s government, politics, not the rule of law, took precedence. The government should proceed as quickly as possible with a comprehensive reform that would protect media regulators and public media from partisan interference.

In January, Poland will assume the presidency of the EU Council. Therefore, passing the relevant laws – even at the risk of a presidential veto and with uncertain results in the upcoming presidential elections – would send a strong signal that the government is serious about its commitment to restoring the rule of law.

This work was supported by the National Science Centre, Poland, under the research project ‘The European Union media regulation and the protection of media freedom in Member States. The case of Member States experiencing the rule of law crisis’, 2024/52/C/HS5/00156 SONATINA 8.