The National
Broadcasting Council

Pursuant to Article 53(1) in conjunction with Article 18(1) of the Broadcasting Act of 29 December 1992 (i.e. Journal of Laws of 2022, 1722) and Article 104 of the Administrative Procedure Act of 14 June 1960 (i.e. Journal of Laws of 2022, item 2000, 2185, hereinafter referred to as the ‘KPA’), having conducted the proceedings initiated ex officio and having considered the case concerning the broadcast of a message disinforming the public opinion about the circumstances of the transit of the President of Ukraine through the territory of Poland, which was broadcast on the Radio ZET programme on 22 December 2022 at 9:00 a.m. in the news service:

I have decided to:

1.  Declare that the Eurozet Radio Sp. z o. o. company with its registered office in Warsaw has violated Article 18(1) of the Act by broadcasting news contrary to the law, the Polish raison d'état and views contrary to the public interest, i.e. news disinforming public opinion about the circumstances of the transit of the President of Ukraine through the territory of Poland, broadcast on the Radio ZET programme on 22 December 2022 at 9:00 a.m.;

2.  Impose a fine of PLN 476,000 (in words: four hundred and seventy-six thousand zlotys) on the Eurozet Radio Sp. z o. o. company with its registered office in Warsaw.

The fine shall be paid within 14 days of the date of receipt of this decision into the account of the National Broadcasting Council at the National Bank of Poland (NBP) Regional Branch in Warsaw to acc. no.: 13 1010 1010 0095 3722 3100 0000.

• In connection with the article ‘Americans transported Zelensky in Poland. They did not ask for help from Polish security services’ [Pol.: Amerykanie przewieźli Zełeńskiego w Polsce. Nie zwrócili się o pomoc do polskich służb] [1], published on the radiozet.pl website at https://wiadomosci.radiozet.pl/Polska/amerykanie-przewiezli-zelenskiego-w-polsce-nie-zwrocili-sie-o-pomoc-do-polskich-sluzb, in a letter dated 29 December 2022 (DPz-WSW.0511.1397.1.2022), the Chairman of KRRiT, hereinafter referred to as the ‘Authority’, requested Eurozet Radio Sp. z o. o. with its registered office in Warsaw, hereinafter referred to as the ‘Broadcaster’, to provide a transcript of all the news programmes broadcast on Radio ZET on  21, 22 and 23 December 2022.

In the absence of a reply to this letter, the Authority, by way of a letter dated 17 January 2023 (Correspondence no. DPz-WSW.0511.1397.2.2022), the Authority requested the Broadcaster to comply with its obligation under Article 10(2) of the Broadcasting Act.

On 18-19 January 2023, the Office of the National Broadcasting Council received, via the ePUAP platform, recordings of news programmes broadcast by Radio ZET on 21, 22 and 23 December 2022.

The analysis of the submitted materials showed that on 22 December 2022 at 9:00 a.m. the Radio ZET programme reported on the circumstances of the transit of the President of Ukraine through the territory of Poland. The transcript of the information about the knowledge of the Polish security services about the transit of the President of Ukraine Volodymyr Zelensky through Poland during his trip to the USA is as follows:

  - Announcements at the beginning of the broadcast (notation time 0:00):

Lead journalist: Radio ZET reveals the story behind Volodymyr Zelensky's journey through Poland.

Other Lead journalist: Our security services were not to know about this.

- Information (notation time 0:22):

Lead journalist: The grenade launcher affair has shattered confidence in our security services.

Other Lead journalist: The US Secret Service, which transported Volodymyr Zelensky through Poland, did not ask for help from our security services and police, according to Radio ZET investigative journalist Mariusz Gierszewski.

Lead journalist: A former head of the Polish security services claims that the Americans and Ukrainians were afraid of the risk of the trip being sabotaged.

Mariusz Gierszewski, editor: Informants claim that the Polish side knew about the entry of the special train from the Ukrainian side, but did not know who was in it. Our security services were not present at the station in Przemyśl. The Americans packed Zelensky into their cars and drove him to Rzeszów, where they put him on a plane, according to an informant from the Polish security services. According to him, this was the result of the Allies' loss of confidence in the Polish security services and police after the affair around the police chief's grenade launcher. A former head of the special services agrees. The Ukrainians and Americans not only read our media, but they also have their own sources of information. It is a clear lack of trust, they feared that the trip would be sabotaged, says a former head of one of the special services.

Other Lead journalist: The deputy head of the Foreign Ministry, Piotr Wawrzyk, told the Polish Press Agency that the Ukrainian president's visit to the US was, so to speak, discussed with us.

In view of this, in a letter dated 14 February 2023 (Correspondence no.: DPz-WSW.0511.1397.10.2022), the Authority informed the Broadcaster of the initiation of proceedings for the imposition of a fine under Article 53(1) of the Broadcasting Act in connection with the finding of the existence in the broadcast of messages contrary to the law, the Polish raison d'état and the public interest, i.e. messages disinforming public opinion about the circumstances of the transit of the President of Ukraine through the territory of Poland, which were broadcast on Radio ZET on 22 December 2022 at 9:00 a.m. The Broadcaster was given the opportunity to actively participate in all stages of the administrative proceedings, to familiarise itself with the case file and to submit requests for evidence. The Broadcaster exercised this right to the extent agreed.

On 21 February 2023, the National Broadcasting Council (KRRiT) received a letter containing the Broadcaster's position and a request to discontinue the proceedings due to the ‘lack of legal and factual grounds’ for penalising the Broadcaster under Article 53(1) of the Act. In the letter, the Broadcaster denied that the broadcast was unlawful or that there had been any disinformation of the public about the passage of the President of Ukraine through the territory of Poland. It stated that the programme did not contain any disinformative content and that all the information in the programme had been gathered with due journalistic care. The Broadcaster also argued that the proceedings should be considered unfounded, as Article 18(1) of the Broadcasting Act could not be applied to the facts of the case. According to the Broadcaster, the Authority wrongly referred to the legal prohibition of broadcasting programmes that are contrary to the law, whereas the provision refers to the promotion of actions that are contrary to the law, the Polish raison d'état, etc. The Broadcaster also argued that Article 18(1) of the Broadcasting Act could not be applied to the facts of the case. The Broadcaster also pointed out that the Chairman had wrongly accused it of alleged ‘disinformation’, as the programme did not promote any activities. It was a typical news programme in which journalists presented certain facts based on information obtained from two reliable sources. The programme did not encourage or incite (either directly or indirectly) any action, let alone an illegal one. According to the Broadcaster, the Constitution of the Republic of Poland, in Articles 14 and 15, grants the press freedom of expression in order to fulfil its most important function – the control of government authorities. The Constitution also prohibits the use of media censorship, applying preventive censorship (Article 54), and protects any form of criticism in the press and even punishes behaviour consisting in its suppression (Article 44(1) of the Press Law). The Broadcaster went on to point out that interference by government authorities in the freedom of expression of the press is permitted only based on an expressly pointed out  provision of the law and is limited to extreme cases that violate the foundations of the existing legal order. Thus, the standards set out in Article 18(1) of the Broadcasting Act constitute a significant restriction on freedom of expression and must therefore be interpreted strictly. The Broadcaster also objected to the procedure because, in its view, no evidentiary procedure had been carried out and the Authority had announced that it would impose a fine on the Broadcaster even before it had heard the Broadcaster. In addition, the Broadcaster argued that the subject matter of the proceedings was defined laconically, and that the Authority did not specify exactly which parts of the programme were false or manipulated. According to the Broadcaster, the Authority also failed to verify the information provided by the Broadcaster, as there is no trace of any action taken by the Broadcaster to determine whether the information provided in the news service on 22 December 2022 at 9:00 a.m. was true. According to the Broadcaster, there are no grounds to conclude that the Broadcaster provided untrue information. The Broadcaster pointed out that more than two months had passed since the programme was broadcast and none of the representatives of the authorities or persons responsible for state security had denied the information presented in the programme, nor had they confirmed that the American Secret Service transporting Volodymyr Zelensky through Poland had requested assistance from the Polish security services and police, or that they had informed the Polish side about who was travelling on the special train from the Ukrainian side. He also stressed that no one had contacted him to ask for a correction after the broadcast and that no action had been taken to protect his personal rights. In view of the above, there are no legal or factual grounds to impose a fine on the Broadcaster.

By way of a letter dated 7 March 2023 (Correspondence no.: DPzWSW.0511.1397.14.2022), the Authority, having established the facts of the case, asked the Broadcaster to provide information on whether the Broadcaster had attempted to contact the relevant State authorities/security services to verify information on the circumstances of the President of Ukraine’s passage through Poland on 21 December 2022 during his trip to the United States, to provide evidence of such activities and to provide information on the nature and timing of any actions taken in this regard by journalists or the editorial board/publisher of Radio ZET's news services.

By way of a letter dated 14 March 2023, the Broadcaster stated that the Authority’s request did not fall within the scope of the proceedings in view of the initiated proceedings for the imposition of a fine in connection with the violation of Article 18(1) of the Broadcasting Law by the emission of unlawful messages, i.e. ‘messages disinforming public opinion’ concerning the circumstances of the transit of the President of Ukraine through the territory of Poland’. In the Broadcaster’s view, regardless of the Authority’s incorrect definition of the subject matter of the standard under Article 18(1) of the Broadcasting Act, the content of the standard determines the scope of the proceedings, including what factual circumstances are relevant to the resolution of the case, which in turn determines the scope of any evidentiary proceedings that the Authority may conduct. Accordingly, the programme does not violate Article 18(1) of the Broadcasting Act, as is clear from both its nature and content. In its arguments to the Authority, the Broadcaster took the view that it was therefore not necessary to conduct an evidential procedure to establish the facts of the case, other than to listen to the programme itself. The Broadcaster reiterated that the programme did not encourage any action, let alone illegal behaviour, and was purely informative. In addition, in response to the Authority’s request to provide information on the exercise of due diligence in verifying the facts presented in the programme, the Broadcaster confirmed that such diligence had been exercised and that the author of the programme had verified the information with reliable sources connected to the relevant state services, but due to the journalistic secrecy resulting from Article 15(2) and (3) of the Press Law, he could not provide specific data on his sources or the circumstances under which the information was provided. The Broadcaster also stressed that journalistic secrecy is an absolute, and that the Broadcaster cannot be exempted from it by a court, let alone the Chairman of the National Broadcasting Council. Moreover, a journalist’s failure to exercise due diligence is not covered by the premise of Article 18(1) of the Broadcasting Act and does not constitute grounds for imposing a penalty under Article 53(1) of the Broadcasting Act. Therefore, in the opinion of the Broadcaster, the demand formulated by the Authority is irrelevant to the resolution of the case and goes beyond the subject matter of the proceedings. In the Broadcaster’s view, this obliges the Authority to discontinue the proceedings.

By way of a letter dated 14 February 2023 (Correspondence no.: DPz-WSW.0511.21397.9.2022), addressed to the Government Plenipotentiary for the Security of Information Space of the Republic of Poland, the Authority requested information whether the Polish security services had been informed of the President of Ukraine’s passage through Poland on 21 December 2022, whether the Polish security services had cooperated with the services of other countries in organising this stage of President V. Zelensky's trip, and whether anyone on behalf of Radio Zet had attempted to verify information on this subject with government sources. In reply, in a letter dated 24 February 2023, the Plenipotentiary stated that the information provided by Radio ZET was not based on the truth, while its interpretation constituted an attempt to use false information to discredit the Polish State. The publication of such false reports, which damage the image of the structures responsible for the security of the state and the position of Poland in the international arena, is in line with the constant aims and activities of Russian propaganda aimed against our country. The Plenipotentiary stressed that the conditions of the current difficult geopolitical situation, related both to Russia’s war waged against Ukraine and to the hybrid aggression of Russia and Belarus against Poland and other Western countries, require the media to be as responsible as possible for their words and to take care of the state’s security in the infosphere. Therefore, it is necessary to constantly remind that media publications which convey or reproduce information to the public that is not based on the truth or is manipulated, are and will be used by the Russian propaganda apparatus to achieve goals that are contrary to the interests of the Republic of Poland.

By way of a letter dated 18 April 2023 (Correspondence no.: DPz-WSW.0511.1397.16.2022), addressed to the Minister of Internal Affairs and Administration, Coordinator of Special Services, in connection with the investigation, information was requested on whether the Polish security services were informed about the passage of the President of Ukraine through Poland during his trip to the United States on 21 December 2022, whether the Polish security services cooperated with the special services of other countries in organising this stage of President V. Zelensky’s trip, and whether anyone on behalf of Radio ZET made attempts to verify information on this subject. The Authority also asked whether the reporting of the information that  the Polish security services were not aware of the Ukrainian President’s passage through Polish territory and that the American special services did not trust the Polish services, could have constituted a danger to the interests of the Polish state or the Polish raison d'état.

In a reply dated 18 May 2023, the Undersecretary of the Ministry of Internal Affairs and Administration stated, among other things, that the Polish security services were in constant contact with their foreign counterparts regarding the security of VIPs protected on Polish territory, that they regularly exchanged information with the Ukrainian and US special services, and that they cooperated in the field of security. He also stressed that the representatives of Radio ZET’s editorial staff did not contact the Ministry of Internal Affairs and Administration or its subordinate bodies (the State Security Service and the Polish Police) to verify the information about Volodymyr Zelensky’s trip to the United States.

After taking note of the above-mentioned replies of the representatives of the state authorities, the Broadcaster submitted a position paper dated 11 July 2003, in which it repeated the request that the proceedings be discontinued as unfounded. In this letter, it stated that the statements of the representatives of the Polish authorities did not make it possible to make findings to the extent requested by the Chairman of the KRRiT, i.e. to obtain concrete confirmation that the Polish security services had been informed about and had cooperated with American and Ukrainian special services in the transportation of Volodymyr Zelensky across Polish territory. The Broadcaster found the replies of both authorities vague and evasive. He also stressed that there was not a single concrete piece of evidence in the case file to prove that the Broadcaster’s programme violated the Broadcasting Act, which proved that the case was unfounded.

Pursuant to Art. 18 (1) of the Broadcasting Act, ‘Programmes or other broadcasts may not promote actions contrary to law and Poland’s raison d’etat or propagate attitudes and beliefs contrary to the moral values and social good; in particular, programmes or other broadcasts may not include contents inciting to hatred or violence or contents which are discriminatory on grounds of gender, race, colour of skin, ethnic or social origin, genetic features, language, religion or belief, political views or any other opinions, nationality, membership of a national minority, wealth, birth, disability, age or sexual orientation or incitement to commit a terrorist offence’.

The Authority first analyses the legal concepts of ‘disinformation’, ‘Polish raison d'état’, ‘social good’ and the term ‘propagation’ (as used in in Article 18(1) of the Broadcasting Act).

As for the term ‘disinformation’, according to the lexical definition, ‘disinformation’ is the act of misleading someone by providing misleading or false information. In the universal dictionary sense, disinformation is defined as false, misleading information. It is identified with the process of providing misleading information, a situation in which reliable information is lacking, also with the transmission of intentional content (Universal Dictionary of the Polish Language, ed. S. Dubisz, vol. 1, Warsaw 2003, p. 601).

In legal doctrine it is argued that disinformation leads to negative social consequences and is characterised by unquestionable harmfulness (e.g. Chmielnicki, Paweł (ed.), Minich Dobrochna (ed.), Prawne aspekty przeciwdziałania dezinformacji w dobie konfliktów i kryzysów [in:] Prawo jako projekt przyszłości, LEX e-publishing house).

Vladimir Volkoff, a French publicist who has made a name for himself as a specialist in disinformation and the manipulation of consciousness, locates disinformation between a misleading and an influencing. Misrepresentation (misleading) is a one-off activity, linked to a specific task, can be carried out in an amateurish manner, uses a variety of means and aims to convince certain people of certain things. Disinformation, on the other hand, involves serious measures, is always carried out (...) through the mass media and is aimed at the general public. The aim of disinformation is to carry out a consistent programme designed to replace, in the consciousness and above all in the subconscious of the broader public subjected to these activities, views considered unfavourable for the disinformer with those that he considers beneficial for himself. (Volkoff V., Psychosocjotechnika. Dezinformacja. Oręż wojny [Psychosociotechnics. Disinformation. The Weapon of War], Delikon Publishing House, Warsaw 1991).

 According to Aneta Januszko-Szakiel, ‘Unlike information, which is aimed at transmitting content that reflects objective truth, disinformation is the transmission of intentional content. The media can manipulate public opinion through various manipulations of information, most commonly through its selection, redundancy, interpretation, modification, providing false or outdated information, etc. Therefore, every effort must be made to protect against media manipulation. It is important to remain aware of possible manipulative actions and to be independent in the reception of media messages. (...) In the process of media information communication, it is of the utmost importance to accurately separate fact from comment, i.e. information from opinion. An informative message is considered optimal when its aim is to convey to the recipient only what the sender knows about a particular subject, and not what he/she feels and thinks, postulates or expects. Such messages are characterised by an accumulation of words and phrases that have an informative function, and the absence or sparing use of adjectives, adverbs, adjectival participles and even nouns with emotional overtones and those with axiological connotations. To summarise, information communication is therefore about the objectivity of the message, allowing the recipients to interpret the facts and create their own individual views. Meanwhile, there is a widespread view that nowadays, in the mass media, informing in the above terms is rare and increasingly the essence of communication in general, including information communication, comes down to inducing the recipients of messages to change their views, behaviour and sometimes even personality. By the appropriate selection of information, its distortion and all other possible treatments of information, the media practices so-called persuasive communication and tries to influence the state of social consciousness.’ (Januszko-Szakiel, A. Dezinformacja jako narzędzie medialnej manipulacji [Disinformation as a tool of media manipulation of consciousness], in: Aksman J. [ed.] Pedagogiczno-społeczne aspekty, Krakowska Akademia im. Andrzeja Frycza Modrzewskiego, Cracow Academy, Cracow 2010, pp. 209- 16).

In line with the conclusions and recommendations of the Opinion of the European Economic and Social Committee ‘Joint Communication to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions “Action Plan to Combat Disinformation”’ [JOIN(2018) 36 final], 2019/C 228/13, (JoL EU C of 5 July 2019), the definition of disinformation adopted includes verifiable, false or misleading information that poses a threat to democracy and causes public harm.

Disinformation undermines trust in institutions, traditional and digital media and harms democracies by hindering citizens from making informed decisions. [...] It restricts freedom of expression, which is a fundamental right enshrined in the Charter of Fundamental Rights of the European Union. Freedom of expression includes respect for the freedom and pluralism of the media and the right of citizens to hold opinions and to obtain and impart information and ideas without interference by public authorities and regardless of national borders. The main obligation of state actors regarding freedom of expression and media freedom is to refrain from interference and censorship and to ensure an inclusive environment and pluralistic public debate. (Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions. Combating disinformation on the internet: a European approach, COM(2018) 236 final).

In Poland, in accordance with Article 213 of the Constitution and Article 6(1) of the Broadcasting Act, the role of the regulator is fulfilled by the National Broadcasting Council (KRRiT) upholding the freedom of speech and the right to information, the independence of media service providers and the interest of the audience, ensuring the open and pluralistic nature of broadcasting, while examining issues concerning individual programmes (pursuant to Article 18(1) of the Broadcasting Act). In the KRRiT’s view, freedom of expression and freedom of speech must be subject to special protection in the application of tools to combat disinformation. Fitting in this context, preventing and combating disinformation is in the interest of both citizens and state bodies. The National Broadcasting Council pursues these values by, inter alia, protecting its audiences from content that may promote activities contrary to the law, the Polish raison d'état and what is referred to as the social or common good.

The Broadcasting Act does not define the concept of ‘Polish raison d'état’. This gap is filled by doctrine. The most comprehensive statement on this issue was made by Jacek Sobczak, who pointed out that that this concept is understood as ‘consideration of the good of the state’. The concept itself – as the above-mentioned author points out – is known to the legislators of various countries as: raiseu d'Etat, reason of state, intyeresy gosudarstva  (J. Sobczak, Radiofonia i telewizja, Komentarz, LEX e-publication).

According to Piotr Ślęzak, ‘reason of state is generally interpreted as consideration of the good of the state, priority of the state interest, predominance of the collective interest; but also as an argument in favour of a certain action in social life’ (P. Ślęzak, Prawo mediów, e-publication LEX).

A similar definition is given by Adrian Niewęgłowski, who points out that ‘acts contrary to the Polish raison d'état are those that harm the interests of Poland as a subject of international law’ (A. Niewęgłowski, Komentarz do ustawy o radiofonii i telewizji [Commentary to the Broadcasting Act], e-publication LEX ). According to the author, ‘acts directed against the interests of the Republic of Poland are offences under Chapter XVII of the Penal Code, entitled ‘Offences against the Republic of Poland’. In this chapter, the legislator has included, among others, Article 130 of the Penal Code, which provides for criminal liability for participation in the activities of foreign intelligence services against the Republic of Poland. Thus, the provisions of this article also refer to any disinformation activities of foreign services against the Polish state. Chapter XVII of the Penal Code also contains Article 132 of the Penal Code, which already refers directly to misleading a Polish state body while providing intelligence services to the Republic of Poland. 

According to the judgment of the Constitutional Tribunal of 25 November 2003, no. K 37/02, the meaning of the term ‘raison d'état’ used by the legislator in Article 18(1) of the Law on Broadcasting should also be interpreted as follows with reference to Article 10(2) of the Convention for the Protection of Human Rights and Fundamental Freedoms of 4 November 1950, stating that ‘the exercise of these freedoms, which entails duties and responsibilities, may be subject to such formal requirements, conditions, restrictions and penalties as are prescribed by law and are necessary in a democratic society in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of confidential information, or for ensuring the integrity and impartiality of the judiciary’.

As stated in legal literature, ‘it appears that the general clause ‘Polish raison d'état’ in Article 18(1) of the Broadcasting Act must be applied considering the function and nature of this provision, which constitutes a restriction on freedom of expression (Article 54 of the Constitution of the Republic of Poland). Such restrictions are permissible if they are necessary in a democratic state for one of the values listed in Article 31(3) of the Constitution of the Republic of Poland, of which security and public order are relevant in relation to the prohibition of broadcasting ‘activities contrary to the Polish raison d'état’. Consequently, the ‘Polish raison d'état’ in this context should be understood as the good of the democratic Polish state, the protection of which is necessary for public safety and order. This good should not be identified with the interests of the current political majority or the current position of the governing authorities. This good is determined by the constitutional characteristics of the Republic, in particular as the common good of all citizens, a democratic constitutional state implementing the principles of social justice, a unitary, independent state with an inviolable territory, governed by the rule of law and based on the tripartite division of powers. (Wojciechowski, K. [in:] Piątek S. [ed.] The Broadcasting Act, Commentary, C.H. Beck, Warsaw 2014, pp. 215-16).

The Broadcasting Act also did not specify the concept of ‘social good’. According to the doctrine, ‘this concept is similar to the concept of social interest, i.e. a concept used in both criminal and civil law’ (e.g. Jacek Sobczak, Radiofonia i telewizja. Komentarz [Radio and Television. Commentary]. According to the author, ‘an act contrary to the social good is a behaviour that is not in the general interest and damages this interest both in the material and spiritual sense’.

Piotr Ślęzak points out that social good ‘should be understood as the achievement of a state of affairs that is beneficial both to the individual and to society as a whole’.

The concept of the ‘common good’ has also been associated in the jurisprudence of the Constitutional Tribunal with security, protection of the territorial integrity of the state and independence. The protection of the security and integrity of the state, serving the common good, constitute in the jurisprudence of the Constitutional Tribunal a justification for limiting the rights of individuals.

The term ‘propagation’ has also not been defined by the legislator, so that doctrine and jurisprudence mostly use lexical meanings that indicate that it means ‘exhorting’, ‘encouraging’, ‘pointing out as appropriate and right’, ‘advocating’, ‘persuading’, but also ‘spreading, disseminating, winning someone over to an idea/concept’.

According to the Universal Dictionary of the Polish Language, the word ‘propagate’ means ‘to spread, disseminate some views, ideas, slogans, to win someone over to an idea, action, etc., to contribute to the popularity of something; to proclaim, propagate, popularise, promote’. Thus, in order to establish the ‘promotion’ of a certain conduct, a linguistic interpretation of Article 18(1) of the Broadcasting Act does not require that the emission of a particular programme be accompanied by an intention to convince the audience of the content contained therein or that the authors of the programme be shown to have acted with a direct or possible intention.

According to J. Sobczak, the concept of ‘dissemination’ is close to the concept of propaganda, i.e. ‘a purposeful, persuasive, usually politically or religiously motivated influence on the collective aimed at shaping human attitudes in order to induce desired behaviour’.

Pursuant to the judgment of the Supreme Court of 2 July 2013, no. III SK 42/12, the word ‘propagate’ used in the wording of Article 18(1) of the Broadcasting Act serves to distinguish programmes, the broadcasting of which may lead to the Broadcaster being held liable pursuant to Article 53(1) of the Broadcasting Act, from programmes containing content of the same type, which does not justify such liability.

Applying the provisions of the law to the established facts, it should be noted that the disinformation activity, consisting in the transmission of untrue information, is considered by the Authority to be the propagation (in the sense of spreading, disseminating) of activities (disinformation) contrary to the Polish raison d'état and the propagation of attitudes and opinions contrary to the social good.

The Broadcaster’s disinformation activities and the dissemination of such activities resulted in:

• discrediting the Polish state and its security services, thus undermining the security of Poland and the structures responsible for the security of the state;
• devaluing the position of Poland in the international arena;
• creating public anxiety and fears regarding the security of Poland and the activities of Polish security services.

The current situation in Ukraine and Russia’s hybrid aggression makes it necessary for the Authority to take care of freedom of speech on the one hand, and state security in the context of the media on the other. This type of information, and in fact disinformation, can – and most certainly will – lead to the exploitation and achievement of objectives contrary to the interests of Poland, and thus to the promotion of actions contrary to the Polish raison d'état and the public good.

Notwithstanding the above, the Authority would like to point out that the disinformation activities carried out by the Broadcaster also violated the law (in particular the provisions of the Constitution, the European Convention on Human Rights and the provisions of the Press Law), which also fulfils the hypothesis set forth in Article 18(1) of the Broadcasting Act.

In discussing this aspect in more detail, the Authority would like to point out that the legislator did not choose to specify explicitly the legal norms with which the broadcasts would be in conflict. In view of the provisions of the Broadcasting Act as a whole – in particular its Article 3 – according to which the provisions of the Press Law shall apply to the broadcasting of radio and television programmes, unless the Act provides otherwise, the Authority has carried out an analysis of the media law in its broadest sense (including the provisions of the Press Law).

Firstly, the Authority notes that under the provisions of the Constitution (Article 54(1) and (2)), everyone is guaranteed the freedom to express his/her opinion and to receive and disseminate information. Preventive censorship of social media and limiting the press are prohibited. At the same time, in accordance with Article 31(3) of the Constitution of the Republic of Poland, restrictions on the exercise of constitutional freedoms and rights may be imposed only by law and only if they are necessary in a democratic state for its security or public order, or for the protection of the environment, health or public morals, or for the protection of the freedoms and rights of others. Such restrictions must not affect the very essence of freedom and rights.

However, pursuant to Article 10(1) of the Council of Europe Convention for the Protection of Human Rights and Fundamental Freedoms, adopted in Rome on 4 November 1950, in force in Poland since 19 January 1993 (henceforth: the ‘Convention’), everyone has the right to freedom of expression. This right includes the freedom to hold opinions, information and ideas without interference by public authorities and regardless of frontiers. However, in accordance with Article 10(2) of the Convention, the exercise of these freedoms entails duties and responsibilities which may be subject to such formal requirements, conditions, restrictions and penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for the prevention of disclosure of confidential information, or for the protection of the integrity and impartiality of the judiciary.

Neither the provisions of the Constitution nor the provisions of the Convention guarantee an unlimited right to freedom of expression. The limits of freedom of expression are reflected, inter alia, in Article 10(2) of the Convention or Article 18(1) of the Broadcasting Act.

Moreover, in accordance with Article 10(1) of the Convention, as regards reporting on matters of public interest, the case-law of the ECHR indicates that ‘this right is subject to the condition of acting in good faith with a view to providing accurate and reliable information – and, in the case of the media, in a manner consistent with journalistic professional ethics’. (Judgment of 27 March 1996, Goodwin v. the United Kingdom, application no. 17488/90,

§ 39; Judgment of 21 October 2008, Wołek, Kasprów and Łęski v. Poland, complaint no. 20953/06; Judgment of 3 April 2012, Kaperzyński v. Poland, complaint no. 43206/07, § 57; judgment of 15 November 2011, Semik - Orzech v. Poland, complaint no. 39900/06, § 44; judgment of 21 June 2011, Kania, Kittel v. Poland, complaint no. 35105/04,  § 36).

In the context of presenting reliable (including truthful) information and not to publish disinformation, there is Article 6(1) of the Press Law, according to which the press is obliged to present its topical material truthfully.

The doctrine indicates that ‘the concept of truthfulness of presented topical material – as a rule – should be understood as truthfulness of the information presented’ (see M. Brzozowska - Pasieka, Prawo Prasowe [Press Law]. Practical Commentary, LEX e-publishing house). According to E. Szydełko - Ferenc, ‘truthfulness consists in reliability, i.e. adherence to facts. Facts (events/occurences) should be presented objectively and completely, without manipulating selected fragments’.

It is also worth mentioning the provisions of Article 10(1) of the Press Law, according to which the duty of a journalist is to serve society and the state, as well as Article 12(1) of the Press Law, according to which a journalist is obliged to exercise special diligence in the collection and use of press materials, to verify the veracity of the information received or to indicate its source.

The above-mentioned articles of the Press Law clearly indicate the need to verify information and prevent disinformation. Therefore, broadcasts that promote disinformation activities are against the law (including the Press Law).

In summary, given the content of the programme in question, it must be concluded that the broadcasting of the aforementioned programmes violated Article 18(1) of the Radio and Television Act by promoting actions contrary to the law, to the Polish raison d'état and to the social good. The presentation in a news programme of the investigative journalist’s finding that ‘the US Secret Service, which transported Volodymyr Zelensky through Poland, did not ask for help from our services and police’ is the use of false information to discredit the Polish state and constitutes an act contrary to the norms of the Press Law, in particular, but not exclusively, its Article 6. The publication of such reports is contrary to the law and to the Polish raison d'état, as it aims to create a negative image of the structures responsible for state security and to undermine the position of Poland in the international arena. Under the conditions of Russia’s war against Ukraine, media publications that are not based on the truth or are manipulated are contrary to the Polish raison d'état.

Regarding the procedure followed, the Authority does not share the Broadcaster’s view that no evidentiary procedure was carried out and that, even before hearing the Broadcaster, the Authority announced that it would impose a fine on the company. As can be seen from the records of the proceedings conducted, in accordance with the principle expressed in Article 10 § 1 of the Code of Administrative Procedure (KPA), the Broadcaster was guaranteed the right, at every stage of the procedure, to acquaint itself with the case file, to submit statements and to request evidence. The Broadcaster’s position is even more incomprehensible given that the Broadcaster itself stated that the programme did not violate Article 18(1) of the Broadcasting Act, which is clear both from its nature and from its content, and that in order to establish these circumstances it is not necessary to conduct any evidentiary proceedings apart from listening to the programme itself. The Authority collected and established the evidence in compliance with the obligations under Article 7 of the Administrative Procedure Act (KPA) and Article 77 of the Administrative Procedure Act (KPA), while the facts were established based on the evidence thus collected in accordance with Article 80 of the Administrative Procedure Act (KPA).

It is obvious that, in accordance with the law, the transit of an alien through the territory of the Republic of Poland cannot be carried out in an arbitrary manner, without the permission of state authorities or other legal grounds. What is more, the transit of the president of another state through the territory of a third country cannot take place without the knowledge of the relevant state institutions. This is common knowledge, and the information provided by the journalists involved in the broadcast should undoubtedly be classified in the category of ‘sensationalism’, which was intended to present a negative position of the Polish state, thus causing public harm. In a situation where the Broadcaster provides information indicating that third parties are carrying out activities on the territory of the State without the knowledge of the national authorities, it should give credibility to the facts presented, even more so since they were presented in a news service which should be an up-to-date, reliable and impartial information source.

The Authority agrees with the Broadcaster’s assertions that there is freedom of the media and freedom of public expression in Poland. However, it is not unlimited. Journalists operate within a certain framework. Their rights and obligations are regulated by the Press Law of 26 January 1984 and the Broadcasting Law of 29 December 1992. Therefore, it is not possible to agree with the Broadcaster which claims that the law does not prohibit the broadcasting of programmes that disinform the public.

Both the case law of the Constitutional Tribunal and that of the European Court of Human Rights (ECHR) indicate that ensuring the realisation of these values may justify the restriction of civil rights and freedoms, including freedom of expression.

 As stated by the Constitutional Tribunal in its judgment of 23 March 2006, K 4/06, ‘freedom of expression is one of the foundations of a democratic society, a condition for its development and the self-realisation of individuals; 2) this freedom is not limited to information and opinions that are received favourably or perceived as harmless or indifferent; 3) the role of journalists is to disseminate information and ideas on matters of public interest and importance’. At the same time, the Constitutional Tribunal noted that ‘similarly to the Convention standard, the constitutional freedom of expression may be subject to limitations in connection with Article 31(3) of the Constitution’ (Constitutional Tribunal ruling of 12 May 2008, SK 43/05), ‘provided that such limitations are provided for by law, are necessary for the protection of the values enumerated in this provision (in particular, public morality) and affect the exercise of this freedom without violating its essence. However, the role of the media and of freedom of expression in the functioning of a democratic society means that State interference with freedom of expression in the media is permissible only in exceptional circumstances and must be duly justified.’ (Constitutional Tribunal Decision of 2 July 2013, III SK 42/12).

Article 18(1) of the Broadcasting Act is a regulation of statutory rank restricting the freedom of expression of the Broadcaster or other communication, which is guaranteed by Articles 14 and 54(1) of the Constitution of the Republic of Poland of 2 April 1997 and by Article 10 of the Convention.

Under the conditions of the information society, the infosphere should be considered in terms of a security environment with opportunities, challenges, threats and risks.

From a national security perspective, it is important to focus on the characteristics of the modern infosphere that make threats possible. First and foremost, attention is drawn not only to the widespread availability of information, but also to the almost unlimited freedom to publish it. This is linked to the proliferation of available information channels, the use of which – both by the receiver and the sender – does not require special technical skills and is relatively inexpensive, i.e. ubiquitous. The result is an overabundance of information which the receiver is unable to adequately analyse, let alone verify the reliability of its sources. (Aleksandrowicz, T., Mechanizmy ataku informacyjnego. Skuteczność przeciwdziałania [Information Attack Mechanisms. Effectiveness of countermeasures],  in: Disinformation - Inspiration - Society. Social Cybersecurity. Boćkowski. D. et al. [eds], University of Białystok Publishing House, Białystok 2022, pp. 11-33),

However, it is also emphasised that, in addition to false information, highly selective information, defamation, sowing panic and incitement to hatred are against the fundamental rights (freedoms) of citizens and the rights of minorities. ‘Indeed, disinformation (...) strikes at the very foundations of democracy: the sense of a community of values, the ability to engage in dialogue and find solutions despite differing views, trust in elected representatives and the judiciary. Disinformation means that literally anything can be undermined and declared false’. From a report found in: ‘Countering Disinformation in Poland. Systemic recommendations’ [Przeciwdziałanie dezinformacji w Polsce. Rekomendacje systemowe], Security Forum Foundation [Fundacja Forum Bezpieczeństwa], Warsaw 2023).

In order to comply with the provisions of Article 18(1) of the Broadcasting Act, it is also irrelevant whether the event was continuous or a one-off.

The provision of Article 18(1) of the Broadcasting Act imposes on the Broadcaster of a television or radio programme the task of shaping the character and content of the programme in accordance with the principles set out therein. In turn, according to Article 13(1) of the Act, the Broadcaster independently designs the programme within the framework of the tasks set out in Article 1(1) and is responsible for its content. Market experts agree that promoting quality journalism and pluralistic news media is crucial in the fight against disinformation, and for educational purposes to develop critical thinking skills and digital literacy, especially among young people.

Therefore, the term ‘promotion in Article 18(1) of the Broadcasting Act can be interpreted in the context of the law in which it is used. This is justified by the fact that based on this provision, liability is attributed to the Broadcaster (legal entity), in relation to which the subjective side of the tort cannot be considered in terms of intentional or unintentional fault. The liability of the Broadcaster under this provision is an objective liability similar to strict liability. This is because the Broadcaster is liable for the content of the programme irrespective of the liability of other persons, including the journalists who present the programme, and irrespective of the intentions of the journalists in preparing the content of the programme. This follows from the wording of Article 13(2) of the Broadcasting Act, which states that Article 13(1) of the Broadcasting Act is without prejudice to the liability of others for the content of individual programmes, advertisements or other broadcasts.

 Journalists have the right to describe events that may outrage the public. However, this must be done with professional care and fairness in the gathering and use of material. ‘The abolition of illegality in the protection of a legitimate public interest requires the use of appropriate means to protect that interest. An unreliable commentary used in violation of the obligation provided for in Article 12 of the 1985 Press Law does not constitute an appropriate measure for the protection of a legitimate social interest’. (Judgment of the Supreme Court of 21 September 2007, V CSK 192/07, LEX No. 619680).

Considering the above-mentioned doctrinal position and established case law, it should be concluded that the Broadcaster violated Article 18(1) of the Broadcasting Act by broadcasting information in its programme that are contrary to the law, Polish raison d’etat and the public good (interest), i.e. messages disinforming the public about the circumstances of the transit of the President of Ukraine through the territory of Poland. The analysis carried out showed that on 22 December 2022, at 9:00 a.m., the news service of Radio ZET published untrue information and unsubstantiated comments about the participation of Polish services in the organisation of the passage of Ukrainian President Volodymyr Zelensky through Poland during his trip to the USA.

In the light of the foregoing, pursuant to Article 53(1) of the Broadcasting Act, it is decided as in the operative part.

Pursuant to Article 53(1) of the Broadcasting Act, if a Broadcaster violates the obligation under Article 18(1) of the Broadcasting Act, the Chairman of the National Broadcasting Council, taking into account the scope and degree of harmfulness of the violation, the Broadcaster’s previous activities and its financial capacity, shall issue a decision imposing a fine of up to 50% of the annual fee for the right to dispose of the frequency allocated for the broadcasting of the programme.

The fee for the right to use the frequency for broadcasting Radio ZET is PLN 953,550 (in words: nine hundred and fifty-three thousand five hundred and fifty zlotys).

Therefore, the maximum amount of the fine is PLN 476,775 (in words: four hundred and seventy-six thousand seven hundred and seventy-five zlotys).

In imposing the fine, the Authority considered the legal requirements set out in the above-mentioned provision, i.e. the scope and degree of harmfulness of the infringement, the Broadcaster’s previous activity and its financial capacity.

In determining the amount of the fine, the Authority followed the premises set out in the cited Article 53(1) of the Broadcasting Act, i.e. the scope and degree of harmfulness of the infringement, the Broadcaster’s financial capacity and its previous activities. The degree and scope of the infringement was considered in the context of the nature and intensity of the infringement. As the Authority has already indicated, the infringement committed by the Broadcaster was significant, consisting in the broadcasting of messages propagating actions contrary to the Polish raison d'état, which had the effect of reducing confidence in the State and its security services, which in turn could have a negative impact on Poland’s position in the international arena. The message was disseminated in a public service broadcast available free of charge to the public. The degree of damage caused by the infringement was therefore high in view of its reach. The above was confirmed by the opinions of government authorities responsible for the country’s security, which were received during the proceedings. In the opinion of these authorities, the information provided by Radio ZET is not only not based on the truth, but its interpretation also constitutes an attempt to use false information to undermine the Polish state and its international position, which in turn only serves the activities of Russian propaganda against Poland. In such a difficult period as the one Poland has been going through since Russia’s attack on Ukraine, the media are obliged to be as responsible as possible for their words, thus ensuring the safety of the state and its citizens.

The financial statements of Eurozet Radio Sp. z o. o. for 2022 show that the company is in good financial health.

Therefore, in the circumstances of this case, a fine of PLN 476,000 (in words: four hundred and seventy-six thousand zlotys) was imposed.

In assessing the case, the Authority also considered the content of Article 189f § 1(1) of the Code of Administrative Procedure (KPA), which stipulates that the public administration body may, by decision, refrain from imposing an administrative fine and issue an instruction if the gravity of the breach of the law is negligible and the party has ceased to breach the law. The Authority shall refrain from imposing a fine in a situation where both conditions mentioned in the above provision are met.

However, in the opinion of the Authority, it is not possible to speak of the goods infringed on as a result of the Broadcaster’s actions that the gravity of the infringement is not negligible. In view of the above, the Authority concluded that in the present case the gravity of the infringement was not negligible, which exempted the Authority from analysing the second condition for waiving the imposition of a fine under Article 189f § 1 pt. 1 of the Administrative Procedure Act, i.e. whether the party had ceased to infringe the law.

In the case in question, the circumstance referred to in Article 189f § 1 (2) of the Code of Administrative Procedure (KPA) also does not apply, i.e. that an administrative fine has previously been imposed on the party for the same conduct in a final decision of another authorised public administration body, or the party has been validly punished for a misdemeanour or fiscal offence or has been validly convicted of a misdemeanour or fiscal offence, and the previous punishment fulfils the purposes for which the administrative fine is to be imposed. Pursuant to Section 2 of Article 189f of the Code of Administrative Procedure (KPA), in cases other than those referred to in Section 1, the public administration body may, if it serves the purpose for which the administrative fine was imposed, issue a decision setting a deadline for the party to submit evidence confirming: 1) the elimination of the infringement of the law, or 2) the notification of the competent bodies of the established infringement of the law, specifying the deadline and the manner of notification. According to § 3, if the party has submitted evidence confirming the fulfilment of the order, the public administration body shall refrain from imposing an administrative fine and shall stop with the order. The doctrine points out that such a decision is possible only if the administrative authority, on the basis of the circumstances of the individual case, taking into account, in particular, the subjective characteristics of the party, determines that the very fact of initiating proceedings in the case and of being in a situation of a real threat of the imposition and execution of a sanction will, in the individual case, lead to the achievement of the objectives assumed for a given sanction (see S. Gajewski, KPA. Nowe instytucje. Komentarz do rozdziałów [Code of Administrative Proceeding – KPA].  Chapters 5a, 8a, 14 and Sections IV and VIIIa of the KPA, Warsaw 2017).

In view of the above findings, acting pursuant to Article 53(1) of the Broadcasting Act in connection with the finding of a breach of Article 18(1) of the Broadcasting Act, it has been decided as set out as in the operative part of the decision.

Pursuant to Article 56(1) and (2) of the Broadcasting Act, in conjunction with Article 479 § 1 pt. 2 of the Act of 17 November 1964 – Code of Civil Procedure (Journal of Laws of 2021, No. 1805, as amended), a party may appeal against this decision to the Regional Court in Warsaw – the Commercial Court in Warsaw through the intermediary of the Authority within one month from the date of notification of this Decision.

Pursuant to Article 3(2)(9) in conjunction with Article 33 of the Act of 28 July 2005 on court costs in civil proceedings (Journal of Laws of 2022, No. 1125, of 2023, No. 181, 289, 326, 403), a fixed fee of PLN 3,000 shall be charged for an appeal against the decision of the President of the National Broadcasting Council.

Pursuant to Article 103 of the Act on Court Costs in Civil Matters, the court may grant an exemption from court costs to a legal entity or an organisational unit which is not a legal entity, but which has legal capacity under the Act, if it proves that it does not have sufficient funds to pay the court costs. Pursuant to Article 105(1) of the abovementioned law, an application for such shall be made in writing or orally to be filed in the minutes of the court before which the case is to be brought or is already pending.

Pursuant to Article 117(1), (3) and (4) of the Code of Civil Procedure, a party which has been exempted from all or part of the court costs by the court may request the appointment of an attorney or legal adviser. A legal person or other organisational unit to which the law confers legal capacity, and which is not exempted from court costs by the court may request the appointment of an attorney or legal adviser if it proves that it does not have sufficient means to bear the costs of the attorney or for the legal adviser’s remuneration. An application for the appointment of an attorney or a legal adviser shall be submitted by the party together with the application for exemption from court costs or separately in writing or orally to be filed on record, in the court before which the case is to be brought or is already pending.

Maciej Świrski