Defamation in Poland

Key Facts – Defamation in Poland

Defamation – definition	The basis for this crime is usually false information. Defamation can be committed, for example, by gesture, in writing or verbally. The behavior of the defamer may take the form of a demeaning verbal or written statement, gesture, Internet meme, sign or other form of communication.
Proof of defamation	In order to prove that a statement is defamatory, the claimant must be able to show that: The statement is false. The statement was published or uttered and third parties read or heard it.
Difference between defamation and insult	In the case of defamation, the impact of the act in question on the loss of trust or diminution of the victim’s authority will be assessed, while in the case of insult, the main aspect to be evaluated will be the victim’s experience of negative feelings.
The penalty for defamation	If the behavior of the perpetrator of the crime can be considered defamation by means of mass communication, he faces a penalty of restriction or imprisonment or a fine.
Cost of establishing a defamation case	The competent court will be the court of residence of the defendant, the lawsuit should be addressed to the district court, which is the competent court in this type of case. The fee for such a suit will be PLN 600 for non-property claims, plus an additional 5% of the amount of the property claim being asserted.

Defamation in Poland – Legal Framework

According to the provision of Article 212 § 1 of the Polish Criminal Code (hereinafter: “CC”):

• “whoever slanders another person, a group of persons, an institution, a legal person or an organizational unit without legal personality about such conduct or qualities that may degrade him or her in public opinion or expose him or her to loss of confidence necessary for a given position, profession or type of activity, shall be subject to a fine or the penalty of restriction of liberty.“
• if the perpetrator commits the above act by means of mass communication, he shall be subject to a fine, restriction of liberty or imprisonment of up to one year.

It is widely accepted that the good protected by the act commented on is the so-called external honour, which includes the protection of respect, the good name of the victim from being subjected to negative perceptions of the victim by third parties.

The increase in the number of those convicted of defamation and insult in Poland is evident from the latest statistics from the Ministry of Justice. In 2021, convictions for defamation were 90% higher than in the previous year. Certainly, however, the conviction statistics do not reflect the scale of crimes committed and the actual defamation phenomenon.

Increasingly, defamation laws are being used by entrepreneurs whose bad opinions take away customers and damage their reputation in the market. The authors of these defamatory opinions are usually dissatisfied customers, but also employees or representatives of competitors.

Defamation can also result in consequences under civil and commercial law. This aspect is described below.

Protection of good name in Poland

Personal interests (such as physical safety, integrity, reputation, name, private and family life, freedom of speech, religious feelings, freedom of expression) are protected by the Constitution of Poland.

Under the Laws of Poland – in defamation cases – we can pursue our rights in civil law and in criminal law.

• Criminal liability, as pointed out by the Constitutional Court in its judgment of 30.10.2006. (P 10/06, OTK-A 2006, No. 9, item 128), has a repressive purpose, and
• Civil / commercial liability has primarily a compensatory purpose but both criminal law and civil law use sanctions of a property nature.

Almost one thousand people were convicted under Article 212 (of Polish Penal Code) between 2002 and 2008, some 30 % of whom received punishments of restriction of freedom or imprisonment. Domestic courts are still frequently confronted with this criminal offence. Most common verdicts are prison sentences or financial compensation.

Defamation Laws in the EU

Criminal defamation, violation of personal rights are extensively regulated by European law. Latest guidelines that EU authorities established are to:

• expand monitoring and advocacy work in countries where the media are heavily affected by the misuse of defamation law,
• conduct awareness and capacity-building activities designed to strengthen the rights of human in defamation cases.

This guidelines are supported by the European Commission, European Court –  to provide the best, and the most efficient protection of human rights for EU member states.

Defamation – Protection under Criminal Law

Slander / Defamation – regulation in Poland

Slander can be carried out not only orally, but also in writing and, among other things, by means of printing, drawing, using technical means of communication (e.g., telephone, Internet).

Slander must refer to conduct (e.g., committing a crime, leading an immoral lifestyle) or features (e.g., alcoholism, organizational chaos, incompetence of personnel) that may bring a person (as well as a collective entity) into disrepute in public opinion or jeopardize the confidence needed for a given position, profession or type of activity.

As per Polish law – for the crime of defamation to occur, the mere exposure to humiliation in public opinion or exposure to the loss of confidence necessary for the position, profession or type of activity – is sufficient. Thus, the defamed person does not need to show that this threat materialized – there was humiliation, loss of confidence. It is sufficient that objectively the perpetrator’s actions could have caused such an effect, but did not have to actually cause it.

It should also be emphasized that even the potential effect of defamation must relate to “public opinion”. This means that the perpetrator’s behavior must be visible to others. In a situation where the only recipient of hurtful opinions, behavior, is the victim himself, defamation will not take place, as there is no wider circle of people to whom the victim would be defamed. In such a case, we can possibly speak of a separate offense of insult.

Remedies for defamation

Criminal prosecution for the offense of defamation is launched at so called – private prosecution. Therefore prosecution depends solely on the will of the victim. This means that we must file a private accusation with the court, which also involves the payment of a fee of 300 PLN  and is a kind of difficulty for the victim, since the victim must identify the person of the accused and designate that person in the accusation.

Alternatively, it is possible to file a written complaint with the police. In a private prosecution case, as a rule, the prosecutor does not participate. Effective drafting of a private defamation accusation in a particular case generally requires assistance of a professional law firm.

The court hearing in a defamation case is preceded by a conciliation hearing, which is conducted by a judge or court clerk. Its purpose is to resolve the existing conflict underlying the private defamation case as permanently and comprehensively as possible by bringing about a reconciliation of the disputing parties, understood as the result of an unforced, unrestricted agreement. However, achieving reconciliation is also possible at a later stage of the case.

The victim – the private accuser is obliged to appear at this hearing, otherwise the Court will consider that he has dropped the charge and will discontinue the proceedings. As a rule, the defendant is not obliged to appear at the hearing. At the same time as reconciliation, the parties may conclude a settlement agreement, the subject of which may also be claims remaining in connection with the accusation. If conciliation proves too difficult to work out through a court hearing, it is possible to refer the case to mediation. Mediation is an alternative to a conciliation hearing. In the event there is no conciliation between parties, the case is referred for trial.

Hearings in defamation cases are closed to the public, which gives additional protection to the victim, unless the victim requests that the trial be held in public.

In defamation trials, the burden is on the slanderer – the accused – to prove the truth and to prove any circumstances that make the assessed behaviour acceptable, while the private accuser has the burden of proving that the accused is the perpetrator of the alleged act.

Undoubtedly, the best solution for the aggrieved party is that the public prosecutor overtakes the prosecution for defamation. Pursuant to Article 60 § 1 of the Polish Code of Criminal Procedure (hereinafter: the “CCP”), in cases of crimes prosecuted by private accusation, the prosecutor shall initiate proceedings or join proceedings already initiated if the public interest so requires. Proceedings then proceed ex officio, and the victim who has previously filed a private accusation exercises the rights of an auxiliary prosecutor (Article 60 § 2 of the CCP). This is undoubtedly the most effective way to prosecute defamation. However, it is up to the public prosecutor to assess the existence of a social interest and is not subject to judicial review.

The most common penalty imposed by criminal courts in defamation cases is a fine. In addition, in the case of defamation, the court may additionally decree a surcharge for the benefit of the victim or for a public purpose indicated by the victim. The court may also order that the verdict be made public, which is often important to the wronged party from an image standpoint.

It is also worth mentioning that the punishability of defamation is subject to time limitation i.e 1 year from the time the victim learned of the person of the perpetrator of the crime, but no later than with the lapse of 3 years from the time the crime was committed (Article 101 § 2 of the CC).

Defamation – Protection under Civil Law

Substantive legal aspect

Polish civil law under Article 23 of the Civil Code of Poland (hereinafter: “CC”) protects a human being’s personal interests. Legal persons have similar protection under Article 43 of the Civil Code of Poland.

There is no statutory definition of personal interests. Article 23 of the Civil Code contains only an exemplary list of such values as health, freedom, honor, name, image.

One of the key personal interests of the natural persons is their “good name”.

The judiciary and legal doctrine differ two types of good name of natural persons:

• “internal good name” referred also as personal dignity and understood as imagination of own values and expectation in that respect; and
• “external good name” meaning good opinion of other people.

Breach of external good name is referred to as defamation, while breach of internal good name is referred to as insult.

One of the key personal interests of legal persons is also the good name referred to also as “goodwill”, “reputation”, “notability”. As opposed to natural persons, legal persons can hold only the external good name – i.e. meaning good opinion of other people.

Defamation – Civil Remedies in Poland

Threat or breach of personal interests of natural or legal persons may create various claims, amongst which, the key are defined in articles: 24, 415 and 448 of Polish Civil Code.

In general, the person who’s personal interests were threatened or breached may, inter alia, request the Court to:

1. confirm that s/he holds particular personal interests or that they were breached (article 189 of Civil Procedure Code, hereinafter: „CPC”);
2. issue the restrain order to prevent actions that pose a threat to the personal interests (vide article 24 § 1 CC);
3. order removal of the effects of breach and in particular to make a statement of an appropriate contents and in an appropriate form (article 24 § 1 CC);
4. award a pecuniary compensation for immaterial damage or payment of appropriate sum to a specified public purpose (article 24 § 1 CC and 448 CC);
5. award a compensation (damages) for material damage (article 24 § 2 CC and 415 CC).

Confirmation of interest

The claim described in 1. above aims solely at confirmation by the court that the particular persons hold particular Personal Interests or/and that they were breached by particular person. Sometimes simple confirmation of such fact is good enough to close the dispute between the parties.

Restrain order for defamation

The claim described in point 2. above aims to eliminate the threat to the personal interests by means of the Court issuing relevant restrain order. In order to benefit from the claim described in point 2. the claimant will need to prove in front of the Court the breach (or threat) of particular personal interest. Due to presumption of illegalness of the breach, it will be the defendant who will have to prove legitimacy of the breach (or lack of breach itself) in the defence. The claim described in point 2. sources from provisions of article 24 § 1 of Polish Civil Code.

Removal of defamation effects

The claim described in point 3. above aim to remove the effects of breach. Most usually it concentrates on demanding to place a statement of an appropriate contents and in an appropriate form.  In order to benefit from the claim described in point 3. the claimant will need to prove in front of the Court the breach of particular personal interest. Due to presumption of illegalness of the breach, it will be the defendant who will need to prove legitimacy of the breach (or lack of breach itself) in the defence. The claim described in point 3. sources from provisions of article 24 § 1 of Polish Civil Code.

The demand for the fulfillment of actions needed to remove the consequences of the violation of personal interest by making a statement of appropriate content and form should be concretized by the person seeking protection, i.e. he should strictly define (formulate) the content of the statement he demands to make.

Compensation for defamation

Two alternative claims described in point 4. aim to compensate immaterial damage suffered by the harmed party. In order to benefit from the claims described in point 4. the claimant will need to prove in front of the court:

• the breach of particular personal interest,
• guilt of the perpetrator in the breach,
• immaterial damage and
• relevance between breach and damage.

It is generally accepted by the courts that also legal persons can benefit from claims described in point 4 although legal persons cannot feel stress, upset, distress or other similar feelings.

Damages for defamation

Compensation (damages) claim described in point 5. aim to compensate material damage suffered by the harmed party.

In order to benefit from the claim described in point 5. the claimant will need to prove in front of the court:

• the breach of particular personal interest,
• guilt of the perpetrator in the breach,
• material damage and
• relevance between breach and damage.

As stated in article 361 of Polish Civil Code, the claimant shall be entitled to recover actual damage and lost profit.

Nature of remedies for defamation

It is important to clarify, that claims mentioned in points 2.- 5. are not alternative to each other and can be pursued jointly.

In addition, the claimants are free to seek for further legal measures and claims as may be provided by other legal acts, e.g. Act on Combating Unfair Competition.

The procedural aspect

The District Court would be materially competent for pursuing the claims described in points 2. and 3. and the claims described in points 4. and 5. above, provided that the value of such claims would be greater than PLN 75,000.

As per general rule stipulated in article 27 and 30 of Polish Civil Procedure Code the claim shall be pursued before the materially competent Court in the district where the defendant has place of residence (in case of natural persons) or seat (in case of legal persons). Alternatively, to what stated in point 22, the claimant may also choose to pursue the “claims from the tort” (…) in front of a ”court in whose district the event giving rise to the claim occurred”.

The court fee for lodging the lawsuit for defamation will depend on what we demand. The fee in a civil case for the protection of personal interests is PLN 600. However, if, in addition to non-material claims (such as the publication of an apology), you also file a claim for compensation or damages, you will have to pay an additional 5% on the amount of such a claim.

According to Article 191 of the CPC, “a plaintiff may pursue several claims in one suit against the same defendant, if the claims can be heard in the same proceedings and if the court has jurisdiction over the total value of the claims, and also if they are claims of different types, as long as none of the claims is included in a separate proceeding or the court has jurisdiction according to the rules of jurisdiction, regardless of the amount of the dispute.” It should be stated that under the above-mentioned article, it is common and usual to combine in one lawsuit, the claims described in point: 2 (claim to restrain further infringement), 4 (claim for immaterial damage) and 5 (claim for material damage).

As a supplementary note, it should be clarified that according to Polish law and legal practice, a lawsuit asserting claims for non-material damage, and in particular claims for damages, should be accurately proven and calculated. As a general rule, it is not permissible to define a claim with the formula “not less than” or “not more than”, as it is required that each claim be precisely defined and calculated as to a certain, precise amount. This requirement does not exclude the possibility of expanding the claim at later stages.

Which procedure to choose for defamation, civil or criminal?

The answer to this question depends, first of all, on the goal we intend to achieve. Usually, people who have been defamed are interested in compensation and in obtaining from the defamer an apology or a statement of a certain content. In such a case, it is better to use the civil action procedure, since only in a civil court do we have a chance to obtain a judgment obliging the violator to make a certain statement. What’s more, the compensation and damages awarded by civil courts are usually much higher than the fine awarded in a criminal case. However, if we do not know the identity of the perpetrator of defamation committed on the Internet, then there are more helpful mechanisms to establish it through criminal proceedings.

It is possible to first conduct criminal proceedings in connection with the act of defamation, and then conduct a civil case, which will then turn out to be simpler, because the civil court will be bound by the final judgment issued in the criminal case, which will then significantly facilitate the evidentiary proceedings on the civil basis.

FAQ – Defamation

Polish criminal code – is the crime of defamation carried out by private prosecution?

Yes, the crime of defamation is carried out by private prosecution, and therefore depends solely on the will of the victim. This means that we must file a private accusation with the court, which also involves the payment of a fee of 300 zlotys, and is a kind of difficulty for the victim, since the victim must identify the person of the accused and designate that person in the accusation.

Under the civil law – which court would be materially competent to hear the case?

As per general rule stipulated in article 27 and 30 of Polish Civil Procedure Code the claim shall be pursued before the materially competent Court in the district where the defendant has place of residence (in case of natural persons) or seat (in case of legal persons).

How to file a defamation claim?

In defamation cases, it is the best to contact an attorney. It is recommended to gather details related to the defamation: detailed description of the history of the incident, a copy of any publications or recordings related to the defamation committed, testimony of any witnesses to the event, a copy of the surveillance video if possible.

How to prove defamation?

The claimant must be able to show that: the statement is false, the statement has been published or uttered (e.g. in the mass media), and third parties have read or heard it. This is required due to the fact that a statement that no one has read or heard cannot harm someone’s reputation. The language used and the meaning of the statement can have an adverse effect on a person’s reputation.

What court fee for defamation case?

The court fee for lodging the lawsuit for defamation will depend on what we demand. The fee in a civil case for the protection of personal interests is PLN 600. However, if, in addition to non-material claims (such as the publication of an apology), you also file a claim for compensation or damages, you will have to pay an additional 5% on the amount of such a claim.

What is the difference between insult and defamation?

In Polish law we can distinguish:  defamation (zniesławienie – Articles 212-215 of the Criminal Code) and insult (zniewaga – Article 216 of the Criminal Code). Defamation is the slander of another person’s negative conduct or qualities, by which one’s reputation can be jeopardized; insult, on the other hand, is insulting someone or expressing contempt for them. The two criminal provisions discussed protect different personal property. In the event of “defamation” – it will be – the “good name” of the victim, or so-called “external honor”. On the other hand, by punishing “slander”, the “dignity” of the victim, or so-called “internal honor”, is protected. Thus, committing slander can result in the loss of one’s position or simply trust on the part of the principal or employer. Insult, on the other hand, affects the self-esteem of the addressee. It therefore touches his private life. It has no direct effects on business or professional relationships.

What is statute of limitations for defamation?

The statute of limitations for the crime of insult shall expire one year from the time when the victim learned of the person of the perpetrator of such crime, but no later than 3 years from the time the crime was committed (Article 101 § 2 of the CC). If proceedings are instituted against a person within this period, the statute of limitations for the crime of insult shall expire 5 years after the end of this period (Article 102 of the CC).

How the crime of defamation can be committed?

For example by harmful statement in media outlets, in form of accusation of theft, accusing someone of committing a criminal act while they did not commit it, accusing someone of alcoholism- wrongful accusation of shoplifting – by violating other persons good name, reputation.

Is it possible to insult a legal entity?

Yes, defamation can be committed either against a natural person, a legal person or an organizational unit without legal personality.

Online defamation

Not only comments posted on the Internet can fulfill the elements of the crime of defamation, but also the comment itself posted on an instant messenger or online forum can be one.

The assessment of the nature of a statement posted on a website as fulfilling the elements of the crime of defamation can only be made through a careful analysis of the content of the statement. It is not only the literal content of the statement that affects its criminal-legal evaluation, but also the circumstances and place of its formulation are important. Thus, it is up to the court deciding the issue of the permissible limits of criticism on the Internet to determine whether the elements of the crime of defamation have been fulfilled.

 

Defamation vs Freedom of Speech

The object of protection of Article 212 of the Criminal Code is the honor of an individual, understood as his good name and recognition due in the perception of other people. However, this protection is not absolute, for it suffers a limitation from other goods, the importance of which in a democratic state of law should not be questioned. The matter in this case concerns permissible criticism. As the Supreme Court pointed out, in addition to the undoubted value in the form of honor, personal dignity and the good name of a particular person, the undoubted value of any community in the form of the right to criticism should also be weighed, especially when this criticism is carried out in the form prescribed by law. In the rule of law, there are non-statutory counter-truths, including a counter-truth in the form of realization of the right to criticism.