The National
Broadcasting Council

The DSA, which is an act of EU law, is not a regulation of online content in a particular member state, but a regulation of due diligence procedures by intermediary service providers in the sense of the DSA. 

The fulfilment of this objective is not met by the latest draft of the law implementing the DSA into the Polish legal order,[1] which introduced significant changes compared to the previous version of this draft.[2]  Moreover, these changes were introduced after the end of the (twice) public consultations, which deprives Internet users and public institutions of the opportunity to collectively refer to them and learn about the drafters' reaction. 

The proposed changes include: 

• a significant extension of the powers of the President of the UKE, who will be able to issue orders to take action against illegal content in services provided by intermediary service providers not only against content that infringes intellectual property rights (as in the previous version of the draft), but also against content that infringes personal rights and the dissemination of which fulfils the conditions of a prohibited act. 

In the previous version of the draft, these powers were assigned to a court and not to the President of the UKE; 

• a significant weakening of procedural safeguards that should guarantee the equality of parties before the law and full impartiality, independence and adequate competence of the decision-making body, while this draft law implementing the DSA provides for the following elements that weaken these safeguards:

1. lack of user participation in UKE proceedings; [3]
2. lack of experience of the UKE in deciding individual cases in balancing protected values such as freedom of expression vs. protection against discrimination, protection of personal rights; 
3. insufficiently strong guarantees of the UKE's independence from the government in the context of the drafting of far-reaching powers for this body in sensitive areas concerning the restriction of freedom of expression;
4. the rigour of the immediate implementation of the UKE's President’s decision; 
5. the possibility to appealing against the decision of the President of the UKE not to a common court, but to an administrative court, which has no competence and experience in resolving disputes on freedom of expression, whose decisions concern the legality of procedural issues, not substantive ones.

Despite the KRRiT's repeated letters, requests and expressed positions in the drafting of the provisions of the Act implementing the DSA, the Government of the Republic of Poland has consistently overlooked the due role that should be given to the KRRiT as one of the competent authorities within the meaning of the DSA. Thus, the Polish government undermines the constitutional role of an independent, pluralistic regulatory body competent in matters of freedom of expression and the right to information by explicitly pointing to the exclusion of the current composition of the KRRiT for political rather than substantive reasons – cf. Draft Act implementing the DSA (Draft of 13 December 2024), Explanatory Memorandum, p. 63:

‘Moreover, given the competences of the National Broadcasting Council with regard to the operation of video–sharing platforms, it could in the future, after the necessary reforms to guarantee its independence, also be considered a competent authority within the meaning of Article 49 of the Regulation’.

The National Broadcasting Council strongly protests against the announced restrictions on freedom of expression in Poland. Such actions constitute a blatant violation of the constitutional guarantees of freedom of expression enshrined in Article 54 of the Constitution of the Republic of Poland, which unequivocally prohibits censorship.

The KRRiT strongly emphasises that the introduction of censorship mechanisms on the Internet, especially without judicial oversight and without procedural guarantees, is unacceptable in a democratic state of law. Such solutions will lead to arbitrary decisions and will restrict the right to information and freedom of expression, which are the basis for free media and civil society.

The National Broadcasting Council declares that, should such legislation be enacted, it will take all possible legal steps to protect the constitutional rights of citizens and hold accountable, all those individuals responsible for introducing censorship.