The advent of social media websites such as Facebook, YouTube and Nasza Klasa has, for many people, replaced mainstream media as their primary source of information. No longer is public opinion shaped by a select few sitting on the editorial boards of local newspapers or broadcasters; instead, it is the sum of individual opinions posted on the internet, either in written or visual form. Today anyone with access to the internet may post his or her opinion, with almost complete anonymity, on any other person, whether a public official or private individual.

The popularity of online social media, however, has reignited the debate in Poland of where to draw the line between one person’s right to privacy versus another person’s right to express his or her opinion. And this matter will probably stand out during this election year, when hyperbole and acerbic criticism will run rife.

Polish courts continue to grapple with the issue of how to apply current law regarding defamation to the internet and questions abound. Should online services such as Wirtualna Polska or YouTube be held to the same standards as traditional print media? And, if yes, is it fair to hold a website responsible for content posted by a third party?

What is defamation?

In general terms, defamation is a written or spoken injury to a person or entity’s reputation, with libel representing a written act of defamation and slander being spoken. The press is not above the law and is in fact subject to the same laws as everyone else in Poland.

This applies equally to the internet.

Freedom of the press

Freedom of the press is protected by Poland’s Constitution, and this applies equally to the internet. However, the Constitution also places limits on the freedom of the press, ostensibly to protect the “public order” and the rights of others.

These restrictions enable Poland to regulate the publishing and broadcasting of material covering a wide range of topics, including sexually explicit content (public morals), insults to religion (public order), alcohol advertising (public health) and criticism of an individual (freedoms and rights of other persons).

Online liability

Just as the editor of a newspaper may be held criminally liable for the contents of its pages, so too may the administrator of a website. In Poland, legal action has been taken against websites which fail to delete offending material once such material is made known to them.

Similar to print media, the administrator of a website may be prosecuted for the contents of its pages if action to remove a defamatory posting is not taken. And this is key. The mere posting of a defamatory opinion or video is not actionable against the administrator of a website if the offending material is removed in a timely manner once it is discovered. Failure to act, however, is actionable.

Go to jail

An action for defamation may be brought not only by the person whose interests were injured, but also by the local prosecutor. Art. 212 of the Penal Code provides for the imposition of a monetary fine and/or imposition of a prison sentence if a person impugns the character of another person by use of the mass media (including the internet) to the extent that such injury adversely affects the person’s credibility and/or ability to work.

As yet, no website administrator has been sentenced to jail in Poland for the contents of a website, as Polish courts prefer to reserve such severe punishment for the actual author of the defamatory material.

The truth will set you free

The publication of true and factual information which causes injury to an individual or entity is not subject to criminal prosecution, provided that the disclosure of such information serves a public good.

Let us hope, then, that online reportage and commentary of the 2010 presidential election does in fact do some public good.

Paul Fogo is a senior attorney with Miller, Canfield, W. Babicki, A. Chelchowski & Partners