Free Speech Implications of Poland’s New Law Under the European Convention on Human Rights
Vol. 39 Online Editor
Poland has recently passed a law that would make it a crime, punishable by up to three years in prison, to use phrases such as “Polish death camps” to describe the Nazi death camps in Poland, or to blame Poland for its complicity in the Holocaust. The bill, which passed in the Senate by a vote of 57-23 and was championed by the ruling Law and Justice Party, contains a “clear and explicit exclusion of such activities related to artistic and scientific pursuits,” which has done little to quell its critics’ concerns that it will suppress free speech and discourse in Poland. This bill has created controversy both in Poland and abroad. Officials from Israel and the United States, in particular, have criticized the bill as a threat to free speech and to Poland’s international relations. Other critics worry about historical inaccuracy, citing Polish citizens’ complicity in the Jedwabne massacre of Polish Jews, and the lesser-known post-World War II atrocities in Kielce, and fear that this bill will be used to target historians and Holocaust survivors. The primary domestic concern is whether this bill violates Poland’s free speech laws. After signing the bill, President Andrzej Duda has referred it to the Constitutional Tribunal for further review to help make this determination. However, this law also has broader implications on free speech law and enforcement in Europe under the European Convention on Human Rights. Under Article 10 of the European Convention on Human Rights (hereafter the Convention), the right to freedom of expression is outlined: “This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers.” Section two of Article 10, however, outlines the exceptions: “The exercise of these freedoms . . . may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.” In defending this law, Polish officials would point out the necessity of protecting Poland’s reputation from slander, and may argue the importance of this law in doing so. The Convention provides states with an affirmative obligation to protect free speech, and this obligation “was written into the Convention . . . to prevent the irresponsible and dangerous use of democracy.” The Polish government seems to have exercised the precise type of democracy that the drafters of this law were worried about here, as it is extremely popular domestically; even opponents of the bill find use of the phrase “Polish death camps” to be “deeply offensive and historically wrong,” but the law seems to be fueled by high tensions and anger about what Polish citizens believe to be scapegoating rather than out of consideration for any of the accepted Article 10 exceptions. The goals of the Convention include “safeguarding, and if necessary, extending, the public space available for free and open discussion integral to democracy.” The concerns about the law express fear that it would severely limit this free and open discussion, particularly in the academic sphere. The European Court of Human Rights has permitted laws limiting speech about the Holocaust before, although in a very different capacity, as they dealt with the much graver offense of denying the Holocaust in its entirety. These laws have been permitted under Article 17 of the Convention, which provides an exception for abuse of rights, and states: “Nothing in this Convention may be interpreted as implying for any State, group or person any right to engage in any activity or perform any act aimed at the destruction of any of the rights and freedoms set forth herein or at their limitation to a greater extent than is provided for in the Convention.” Forbidding the dispute of “these ‘notorious historical truths’ is as much a matter of their reality as it is of their magnitude and gravity. . . . However, it is also true that the court sometimes makes reference to abuses of the freedom of speech that are incompatible with democracy and human rights.” To include the Polish law among Article 17 jurisprudence would vastly expand the type of speech which the Strasbourg Court has found to be intolerable, which has historically been incredibly limited. Polish officials could easily focus on the similarities between the two cases; President Duda has stated that “[w]e, as a state, as a nation, have a right to defend ourselves from an evident slander, an evident falsification of historical truth, which, in this case, for us is a slap in the face.” The Strasbourg Court has, however, drawn a distinction in its Article 10 jurisprudence between how it deals with statements of fact and value judgments. Value judgments are given much wider deference. The Polish law, however, actively disallows certain facts, such as the events at Jedwabne and Kielce. Speech such as that banned by the Polish law is thus very likely to be protected by the Court. The Polish law might never even be reviewed by the European Court of Human Rights, depending on the outcome of the Constitutional Tribunal, but if it does, the Court’s decision may set important precedent in its interpretation of Articles 10 and 17 of the Convention. It will be interesting to see whether the exceptions to the Free Expression Article vastly expand, or to what extent they will continue to be limited. This may have a tremendous effect as other states move to make similar laws.  Marc Santora & Joanna Berendt, Poland Tries to Curb Holocaust Speech, and Israel Puts up a Fight, N.Y. Times, Feb. 1, 2018, https://www.nytimes.com/2018/02/01/world/europe/poland-israel-holocaust-law.html.  Id.  Steve Hendrix, Poland Wants to Outlaw Blaming Jews for Nazi Atrocities. But What About the Jedwabne Massacre? Wash. Post, Feb. 6, 2018, https://www.washingtonpost.com/news/retropolis/wp/2018/02/06/poland-wants-to-outlaw-blaming-poles-for-nazi-atrocities-but-what-about-the-jedwabne-massacre/?utm_term=.41c718ae59a8.  Caitlin Behles, Poland Enacts Law Prohibiting Blaming Poland For Assisting in Holocaust (February 7, 2018), Am. Soc’y of Int’l L., Feb. 9, 2018, https://www.asil.org/blogs/poland-enacts-law-prohibiting-blaming-poland-assisting-holocaust-february-7-2018.  See Hendrix, supra note 3.  Rick Noack, Poland’s Senate Passes Holocaust Complicity Bill Despite Concerns from U.S., Israel, Wash. Post, Feb. 2, 2018, https://www.washingtonpost.com/news/worldviews/wp/2018/02/01/polands-senate-passes-holocaust-complicity-bill-despite-concerns-from-u-s-israel/?utm_term=.e803bb20f5a7.  Hendrix, supra note 3; Rachel E. Gross, Kielce: The Post-Holocaust Pogrom That Poland Is Still Fighting Over, Smithsonian.com, Jan. 8, 2018, https://www.smithsonianmag.com/history/kielce-post-holocaust-pogrom-poland-still-fighting-over-180967681/.  See Noack, supra note 6.  Statement by the President of the Republic of Poland on the amendment of the Act on the Institute of National Remembrance, President.pl, Feb. 6, 2018, http://www.president.pl/en/news/art,669,president-decides-to-sign-anti-defamation-bill.html.  Convention for the Protection of Human Rights and Fundamental Freedoms, art. 10, Nov. 4, 1950, 213 U.N.T.S. 221 [hereinafter European Convention on Human Rights].  Id.  See Santora & Berendt, supra note 1.  Jean-François Flauss, The European Court of Human Rights and the Freedom of Expression, 84 Ind. L. J. 809, 810 (2009) (citations omitted).  See Santora & Berendt, supra note 1.  See Flauss, supra note 13, at 814 (citations omitted).  Paolo Lobba, Holocaust Denial Before the European Court of Human Rights: Evolution of an Exceptional Regime, 26 Eur. J. Int’l L. 237, 238 (2015).  See European Convention on Human Rights, supra note 10, at art. 17.  See Flauss, supra note 13, at 838.  See Santora & Berendt, supra note 1.  See Flauss, supra note 12, at 816-17.