Polish anti-defamation law

In February 2018, the Polish Parliament passed a piece of legislation that is commonly being referred to as an “anti-defamation law.”

The legislation was an amendment to the 1998 Act on the Institute of National Remembrance – Commission for the Prosecution of Crimes against the Polish Nation.

The government say the Act is supposed to target the use of phrases such as “Polish death camps” to describe Nazi facilities such as Auschwitz which were set up in Poland. However, critics say the Act is too broad in its application and vague in its definitions, and so it could be used to stifle historical debates, and as a weapon against critics of the government.[1]

The most significant part of the 2018 amendments to the Act is article 55a, clause 1:

Whoever claims, publicly and contrary to the facts, that the Polish Nation or the Republic of Poland is responsible or co-responsible for Nazi crimes committed by the Third Reich […] or for other felonies that constitute crimes against peace, crimes against humanity or war crimes, or whoever otherwise grossly diminishes the responsibility of the true perpetrators of said crimes – shall be liable to a fine or imprisonment for up to 3 years.[2]

Another key clause is article 55a, clause 3, which protects artists and academics from prosecution:

No offence is committed if the criminal act specified in clauses 1 and 2 is committed in the course of one’s artistic or academic activity.

The government have often cited this protection to defend the legislation. Academics have been amongst the strongest critics of the law. Despite this provision, many academics believe the current Law & Justice (PiS) government’s record of attacking academics such as Professor Jan Gross, for his work looking at the treatment of Jews in Poland during World War Two, suggest that the government and its allies will find a way to use the legislation against them.[3]

Another feature is the law’s extra-territoriality, as under the amendment introduced in article 55b, it applies throughout the world, regardless of local laws:

Irrespective of the regulations in force at the location of committing the criminal act, this Act shall apply to Polish and foreign citizens.

This provision has reportedly already been used. The Polish League Against Defamation (RDI), said to have close-links to the ruling PiS party, has filed charges of defamation against the Argentinian newspaper Página/12, for an article it published in December 2017.[4]

The law’s passing has been strongly criticised by both Israel and the United States, usually seen as allies of Poland.

Israeli Prime Minister Benjamin Netanyahu described the law as “baseless”. “One cannot change history and the Holocaust cannot be denied. I have instructed the Israeli Ambassador to Poland to meet with the Polish prime minister this evening and express to him my strong position against the law.”[5]

The United States said the law was an attack on free speech and urged Warsaw to “re-evaluate” the bill “in light of its potential impact on the principle of free speech and on our ability to be strategic partners.”[6]

In a statement the Yad Vashem Holocaust memorial in Jerusalem said that while there was “no doubt” that the phrase “Polish death camps” was a “historical misrepresentation”, the centre opposed the planned legislation as it was:

Liable to blur the historical truths regarding the assistance the Germans received from the Polish population during the Holocaust. Restrictions on statements by scholars and others regarding the Polish people’s direct or indirect complicity with the crimes committed on their land during the Holocaust are a serious distortion. [7]

The government has defended the bill against these criticisms. Polish Justice Minister Zbigniew Ziobro, said in an interview that:

The amended Institute of National Remembrance law is meant to protect the Polish state and nation as a whole against false accusations of complicity in German crimes, rather than blur responsibility of individuals or groups. There will be no punishment for witnesses of history, scholars or journalists who quote painful facts about our history. Investigations will be launched when evident German crimes are denied, belittled and attributed to the Polish state or nation.[8]

In acknowledgement of the controversy caused by the Act, President Andrzej Duda decided to file a motion to the Polish Constitutional Tribunal to check the Act’s constitutionality. In particular, the President has asked the court to look at:

• Whether the law violates the freedom of speech
• Whether its wording is sufficiently precise to assure the predictability of its application.[9]

President Duda could have referred the bill to the Tribunal before signing it into law, but chose not to.

The FCO expected a ruling from the Tribunal in early May, but, at the time of writing, no such ruling has been issued.

[1] See, for example, ‘Legacy of ashes’, Orlando Crowcroft, Newsweek, 4 May 2018.

[2] A full English-language version of the law is available from the Times of Israel: ‘Full text of Poland’s controversial Holocaust legislation’, 1 February 2018.

[3] ‘Legacy of ashes’, Orlando Crowcroft, Newsweek, 4 May 2018

[4] ‘Poland: group sues Argentinian newspaper under new Holocaust law’, The Guardian, 5 March 2018.

[5] ‘Polish bill on Nazi war crimes sparks outrage in Israel’, Financial Times, 28 January 2018

[6] ‘Poland’s Senate defies criticism to pass Holocaust bill’, Financial Times, 1 February 2018.

[7] ‘Polish bill on Nazi war crimes sparks outrage in Israel’, Financial Times, 28 January 2018.

[8] ‘Justice Min: Anti-defamation law to protect Poland from false charges of complicity in German crimes’, Polish Press Agency, 24 February 2018

[9] The Center for Global Constiutionalism- Verfassungsblog, ‘Reviewing the Holocaust Bill: The Polish President and the Constitutional Tribunal’, Marcin Matczak, 7 February 2018.