HFHR comments on proposed pre-publication approval amendment to Press Law Act
The HFHR has submitted its comments to a proposed amendment to the Press Law Act, which attempts to regulate the legal concept of pre-publication approval (Articles 14(2) and 49 of the PLA). According to the HFHR, given the shape of the currently applicable law, the proposals are a step in the right direction but fail to fully implement the standards of freedom of expression.
ECtHR critical on approval laws
The proposed amendment is to implement the ECtHR judgment from 2011 entered in Wizerkaniuk v. Poland. In Wizerkaniuk, the Strasbourg Court criticised the current law on pre-publication approval. “The launch of works on an amendment that aims to implement the Court’s judgment should be assessed positively. At the same time, we think that the proposed changes are insufficient from the perspective of protection of the freedom of expression and fail to fully implement the standards developed by the ECtHR”, says Dorota Głowacka, a lawyer working with the HFHR.
The proposal changes the rules of liability for a breach of the obligation to obtain a pre-publication approval, which is no longer classified as a criminal offence – instead, such a breach will be punishable as a petty offence. The proposed provisions introduce statutory time limits for the grant of a pre-publication approval: 24 hours for journals and 3 days for magazines. If a person whose statement is to be published fails to respond to a request for a pre-publication approval within the above timeframes, they are deemed to have approved the publication of the statement in the form presented by an article’s author. The proposed amendment also determines that a presentation of brand new questions and answers by the responding person to an article’s author is not a pre-publication approval.
According to the opinion of the HFHR, the proposed regulation does not address a key problem: under the amended law, a journalist still may be held legally responsible for a failure to obtain a pre-publication approval of a statement published in an accurate and truthful manner, verbatim and without any manipulations or distortions. Moreover, the introduction of time limits for granting pre-publication approval provides a journalist with no remedy if an interviewee explicitly refuses the approval. “In consequence, the proposed regulation may still be used as a measure freezing the publication of statements that are subsequently considered inconvenient by their authors”, Ms Głowacka notes.
The proposed liability under the Petty Offences Code is still a repressive sanction and as such raises concerns as it may be irreconcilable with the principle of proportionality. The HFHR assesses that shifting to the regime of civil liability would be a better option. “The civil liability for the absence of a pre-publication approval can be introduced without a separate special regulation of pre-publication approval. Such an approval may be required as a part of the obligation to exercise the utmost degree of care and integrity in collecting and utilising press materials, which is imposed on journalists under Article 12(1) of the Press Law Act”, the opinion reads. Under such a regulatory arrangement, the requisite degree of care would be assessed in a trial initiated by a claim for a remedy for a breach of personal interests. Additionally, the person giving a statement would be able to seek protection of their interests through a request for the publication of a rectification.
Threat of self-censorship
In consequence of the above, the proposed regulation of the pre-publication approval may still result in journalists applying self-censorship in interviews. They may avoid asking uncomfortable and inquisitive questions or raise sensitive themes in fear of difficulties being made by their interlocutors at the pre-publication approval stage of the publishing process. This means that the proposed provisions on the pre-publication approval may still cause the “chilling effect” on the exercise of fundamental rights and duties of a journalist.