Electoral disinformation and summary judicial proceedings. Is the Polish experience relevant?, by Adam Krzywon

1. The disruptive effect of electoral disinformation

The phenomenon of disinformation has become one of the most challenging and preoccupying problems for policy-makers, courts, and legal scholars. Dissemination of false information plays an important role in many elections. That is why various countries have adopted special measures that would limit the disruptive effect of these practices on democratic processes. In Poland special summary (24-hour) judicial proceedings were introduced in 1998. Although it has been successfully used to declare that information disseminated during an electoral campaign is false (over the period 2011-2019 about 2000 cases were brought before the Polish courts), it has not attracted much attention and is generally absent from the current legal scholarship and international reports on electoral disinformation. Recently, the French law from December 2018 against the manipulation of information, including similar mechanism that enables to issue a judicial expeditious ban on the dissemination of online disinformation, has obviously gained much more attention. The latter is more complex than its Polish equivalent and responds better to the weaponization of social media and its ability to create a virtual electoral reality.

Against this backdrop, this post aims to critically analyze the Polish regulatory model concerning summary judicial proceedings. The implications of these mechanisms become even more complex when we consider that in mid-2019 the European Court of Human Rights (ECtHR) found Poland for the third time in breach of the right to freedom of expression (Article 10 of the European Convention on Human Rights, ECHR) for having convicted the applicant in these extraordinary 24 -hour judicial proceedings.

2. The Polish model under the European supervision

The Polish electoral law (currently the Article 111 of the Electoral Code from 2011) enables all candidates standing for election, as well as electoral committee representatives, to initiate special judicial proceedings, if disseminated electoral materials (such as posters, slogans, leaflets, or statements) contain false data or information. The interested party may request that the court assess the truthfulness of these statements and issue an order prohibiting their dissemination. This might involve a ruling that protects candidate’s personal rights (e.g. reputation). The aggravated party can also demand payment of up to PLN 100,000 (about EUR 25,000) to a charity organization. The petition must be examined by a court in (civil) non-contentious proceedings within 24 hours. The first-instance ruling may be appealed within 24 hours, and the second-instance court must rule within the same time -limit (24 hours).

On three occasions the ECtHR has reviewed the practical application of these provisions. In  Kwiecień v. Poland (2007), it pointed out that summary electoral proceedings are aimed at ensuring the proper conduct of the electoral campaign by preventing infringements of the candidate’s rights, which could affect the result of the elections. The provision of such a summary remedy serves the legitimate aim of ensuring the fairness of the electoral process and, as such, is compatible with the ECHR. This general compliance may not, however, result in the undue curtailment of the procedural guarantees afforded to the parties. In this context, the ECtHR noted that the Polish courts (the first and second instances) failed to comply with the requirement to hand down a judgment within 24 hours. Both rulings were issued after the balloting had taken place, when the extraordinary proceedings had lost their relevance. In Kita v. Poland (2008), the ECtHR noted that the national courts, in their expeditious examination of election-related disputes, had failed to distinguish between statements of fact and value judgments, and had not considered that the impugned material formed part of a debate on matters of public interest.

More recently, in Brzeziński v. Poland (2019), the ECtHR basically repeated its previous arguments, drawing the attention to the issue of cumulative and disproportionate sanctions applied by the national courts. Surprisingly, this ruling referred – for the very first time – to the notion of “fake news” which, according to the ECtHR, could damage the candidate’s reputation and should be rectified as soon as possible to preserve the quality of public debate. It is a positive development that the ECtHR explicitly considered the spread of false information in electoral processes as detrimental to democracy. One might, however, anticipate the employment of more sophisticated and clear terminology. It has to be borne in mind that both the legal scholarship and international organizations reject the term “fake news” as being too vague and inadequate for describing the complex phenomena of untruthful information campaigns.

3. The adequate legal framework for summary judicial proceedings

Measures such as the Polish summary judicial proceedings, which are of a civil nature, seem to be an adequate reaction towards electoral disinformation. Generally speaking, a court’s assessment of the truthfulness of the information, when the basic sanction is an order to stop its dissemination, constitutes a legitimate interference in the political (electoral) discourse. Obviously, the legal framework for these proceedings should be properly defined, according to the margin of appreciation conferred on the national authorities by Article 10 ECHR (freedom of expression) and Article 3 of the Protocol 1 to ECHR (right to free elections). Similarly, its practical application must respect the general rules for the protection of freedom of expression established in the ECtHR case-law.

Summary judicial proceedings provided in the Polish statutory law target the author of electoral disinformation. When the latter is anonymous, which is more common in an online environment, these instruments unfortunately become inadequate. In this context, the model provided in the aforementioned French law, addressing the massive spread of electoral disinformation rather than its author, is a more reasonable remedy as far as modern communication techniques are concerned.

Nonetheless, targeting the author of the electoral disinformation enables not to introduce the definition of this notion, since the simple condition of “false information” can be applied. Moreover, authorizing a candidate or a political party to initiate court proceedings to address false electoral information means that a protected interest exists and is in jeopardy. In this model, harm is of an individual nature (false information affects a candidate’s rights), but also influences the public decision-making process. The initiative to launch judicial proceedings is of fundamental importance. It is hard to imagine that in a democratic state the truth of electoral information would be assessed ex officio by public authorities. It would impose an impossible and disproportionate burden on the state and could lead to the discriminatory application of such provisions.

Another important condition concerning judicial summary proceedings is that the court should focus on examining falsity or truthfulness of the facts (information), not value judgments. According to well-established ECtHR case-law, the truth of the latter is not susceptible of proof, whereas the existence of facts can be demonstrated. As evidenced by Kita v. Poland (2008), this is not an easy task for the courts, since within a short time frame they usually have to decide about statements that include both facts and value judgements. That is why, in the first place, they should verify the truthfulness of clear facts, allowing the participants of the political debate to express their opinions and criticism, even if their factual basis is minimal. The general idea of summary proceedings is to provide truthful information, which then can serve as the basis for voters as they form their own political opinions. Public authorities’ rulings must not substitute for individual discernment as citizens form their value judgments before election day.

The aforementioned Polish cases before the ECtHR show also that, for the ECtHR, sanctions are one of the most important issues. A court’s order to take down false electoral content that disturbs a voter’s decision-making process, and to stop its spread, cannot be questioned under the ECHR. Other types of sanctions, including those of a financial nature, are possible, but in these cases the European scrutiny must be stricter. It is crucial to prevent a chilling effect on the electoral debate. If there are additional possible sanctions (as in the Polish law), their application must be proportionate to the harm caused by the dissemination of the false electoral information. The court should have the possibility to choose between more or less restrictive measures, and must always consider the use of the more lenient one. Also, any arbitrariness in the application of the sanctions should be avoided, as it could affect the equality of opportunities of the candidates.

The most problematic aspect of summary judicial proceedings are sanctions aimed at the protection of a candidate’s personal rights (e.g. reputation, as in the Polish law). The rationale of summary judicial proceedings is to guarantee the reliability and fairness of decision-making processes, as well as truthfulness of electoral information. Harm caused by disinformation can also be personal, although from this perspective, the obligation to rectify false statements, and the prohibition of their further dissemination, seems to be a sufficient reaction. Claims related to non-pecuniary damages, such as the violation of a candidate’s reputation, may be problematic for a court, as they entail procedural burdens. It is hard to imagine how a court in a 24-hour time frame could, at the same time, decide on the truthfulness of the electoral information, apply the proportionate sanction, and provide satisfaction to the injured candidate, after having assessed the scope of the damages. Moreover, from the electoral perspective, it is not necessary to examine the claims related to the individual rights and interests before election day. With regard to the latter, the aggrieved party can always initiate ordinary proceedings of a civil nature, where there is no curtailment of procedural rights, and the court is not obliged to make an expeditious examination of the claims and damages.

During every type of elections (parliamentary, presidential, local and to the European Parliament) Polish courts have to deal with hundreds of applications alleging electoral disinformation. There is no doubt that the above-mentioned ECtHR case-law, showing the weak points of the Polish electoral law, provides important guidance on its practical application. Above all, the courts are becoming more aware of the obligation to observe the procedural time frame and choose adequate sanctions, as well as are more conscious of current European standards concerning the freedom of electoral expression. Nonetheless, summary judicial proceedings provide only a partial solution to the problem of disinformation, since they are not a remedy for all types of electoral abuses. The paradigm shift in communication and weaponization of social media require, de lege ferenda, to take up the issue of digital electoral campaigns and online anonymity. In this respect the shape of the possible future regulation has been established in the abovementioned French law against the manipulation of information.

Posted by Dr Adam Krzywon (Adjunct Professor at the Law Faculty of the University of Warsaw and Research Fellow at the German Research Institute for Public Administration (FÖV), Speyer).

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