We have already written about the changes we can expect at EU level. Today, we look at whether Polish law, as it currently stands, offers any protection against SLAPPs.
Put simply, SLAPPs (Strategic Lawsuits Against Public Participation) are lawsuits brought to intimidate or silence people who criticise the actions of public authorities, companies or other entities. Their aim is to discourage public participation and restrict freedom of expression.
In Polish reality, SLAPPs most often take the form of:
- Actions for infringement of personal interests (Articles 23 and 24 of the Civil Code)
- Actions for unfair competition (Articles 3 and 14 of the Act of 16 April 1993 on combating unfair competition, uniform text: Journal of Laws of 2022, item 1233)
- Private indictments for defamation and insult under Articles 212 and 216 of the Criminal Code, respectively.
- And, in extreme cases, public indictments for offences against religious sentiments under Article 196 of the Criminal Code.
Code of Civil Procedure vs. SLAPPs
In our view, with greater public awareness and bold application of existing legislation by judges,[1]the current regulations could potentially protect against SLAPPs.
In particular, we draw attention to Article 191(1) of the Code of Civil Procedure, which allows courts to dismiss a lawsuit in camera if it appears from the claim and the evidence, from the circumstances of the case, from generally known facts and from facts known to the court ex officio that the claim is unfounded.
This looks very simple in theory, but in practice is more complicated. How do you know beyond reasonable doubt that a lawsuit is a SLAPP and should be dismissed as manifestly unfounded? We will discuss this in the next issue.
Manifestly unfounded lawsuits
When introducing the above regulation into the Polish legal system, the lawmakers defined a manifestly unfounded lawsuit in a completely different manner. One of the reasons given was that it would relieve the courts of the burden of recognising cases that would be a waste of the court’s time and work.
However, such a justification is unfortunate, to say the least, as it assumes that the court decides on the chances of success of a particular lawsuit at the preliminary examination stage, which may lead to a breach of the right to a fair trial.[2]
Judicial practice has shown, however, that the definition of a manifestly unfounded lawsuit is moving in the right direction, as a lawsuit may also be considered manifestly unfounded when it can be seen to be of a bogus nature, that is to say, it does not seek to obtain a judicial determination of rights or obligations, but it uses legal and procedural institutions to satisfy a different, ulterior purpose.
This can refer to situations where a party bringing an action does not seek to obtain a favourable ruling or to prejudice their opponent, but merely to initiate legal proceedings for the sake of taking part in them. The manifest unfoundedness of a lawsuit must therefore be apparent from the claim itself, possibly taking into account facts which are common knowledge and known to the court ex officio.[3]
Paradoxically, the courts make use of the institution of dismissal for manifest unfoundedness in camera, noting, first, that this is not the case in SLAPP cases and, second, that appealed judgments are in most cases reversed and remanded for reconsideration after an appeal has been heard.
In our view:
- The lack of in-depth awareness
- The lack of training for lawyers, including judges, in identifying SLAPPs, and
- The willingness of lower courts to adjudicate so as not to have their judgement overturned and remanded for reconsideration
will result in judges remaining reluctant to reject potential SLAPPs as being manifestly unfounded for a long time to come.
Notwithstanding this, we should not lose sight of Article 5 of the Civil Code and Article 4(1) of the Code of Civil Procedure, designed to protect not so much against SLAPPs as against extremely unfavourable judgments. And that is only after the taking of evidence has been completed, when it becomes clear in the course of the proceedings that a party bringing an action has no intention of obtaining the legal protection sought, but only of harassing their opponent.
Anti-SLAPP criminal regulations
The Polish criminal law system provides, inter alia, for private prosecution for defamation under Article 212 of the Criminal Code.
In our professional practice to date, this regulation is repeatedly used to stifle public participation and is directed against those who exercise their freedom of expression.
This is a European phenomenon. Currently, according to the recommendations of the Council of Europe,[4] the signatory states of the European Convention on Human Rights are obliged to work towards the abolition of prison sentences for defamation.
The European Commission is also calling for a similar solution.
Recommendation 2022/758 of 27 April 2022[5] states:
“In order to prevent a chilling effect on the public debate, Member States should ensure that penalties against defamation are not excessive and disproportionate. They should pay particular attention to the Council of Europe’s guidelines and recommendations addressing the legal framework for defamation, in particular criminal law. In this context, Member States are encouraged to remove prison sentences for defamation from their legal framework. The Parliamentary Assembly of the Council of Europe in its Resolution 1577 (2007) (16) has called on its Member States, which still provide for prison sentences for defamation, even if they are not actually imposed, to abolish them without delay.”
The Commission goes one step further and encourages Member States to support the use of administrative or civil law to deal with defamation cases, provided that this has a less punitive effect than criminal law.
Where SLAPPs take the form of private indictments, the court hearing a case may, usually at the request of the defence, consider discontinuing the proceedings on the basis of Article 17 of the Code of Criminal Procedure (listing circumstances that prevent the proceedings from continuing).
These circumstances are called conditions of admissibility of criminal proceedings or procedural conditions[6]. Of particular importance is Article 17(1) (2) of the Code of Criminal Procedure, which provides that proceedings shall not be instituted and proceedings instituted shall be discontinued if a particular act does not bear the hallmarks of a prohibited act or if the law provides that a perpetrator has not committed an offence.
If the court comes to the conclusion that the act does not bear the hallmarks of a prohibited act, the proceedings may be discontinued prior to the trial at a hearing pursuant to Article 339(3) (1) of the Code of Criminal Procedure only if it is clear from the indictment that the act charged against the accused does not bear the hallmarks of a prohibited act.
Does Polish law offer protection against SLAPPs
Polish criminal law allows for cases to be discontinued, which happens quite often. In addition, unlike in civil procedure, decisions to discontinue a case are upheld on appeal.
Judicial practice shows that discontinuance is often used by the courts, and not only because the cases involve private indictments bearing the hallmarks of a SLAPP.
By contrast, in civil proceedings, when it comes to dismissing a lawsuit on the grounds that it is manifestly unfounded, the protection against such suits appears to be purely theoretical and illusory.
Instead, it happens, albeit very rarely, that personal interest lawsuits are dismissed on the grounds of abuse of the rules of procedure by claimants.
In personal interest cases, the courts are extremely cautious when it comes to respondents exercising their freedom of expression. This is probably related to the peculiarities of Polish civil procedure, where the rule is to go through the proceedings to take evidence in order not to be accused of not examining the merits of the case in the event of an appeal.
Therefore, it would be appropriate to postulate the creation of a regulation along the lines of the regulations proposed by the EU, which would allow Polish courts to decide freely on the merits of legal actions that are SLAPPs.
In fact, there is currently no sign of any anti-SLAPP bill coming from either the government or parliament. Or at least an amendment to existing criminal or civil law.
Any questions? Contact us:
[1] Z. Nowicka, Polskie prawo może chronić przed SLAPP-ami. Prawnicy powinni przekonać do tego sądy, URL: https://oko.press/polskie-prawo-moze-chronic-przez-slapp-ami-prawnicy-powinni-przekonac-do-tego-sady access date: 05.10.2023.
[2] O. M. Piaskowska [in:] M. Kuchnio, A. Majchrowska, K. Panfil, J. Parafianowicz, A. Partyk, A. Rutkowska, D. Rutkowski, A. Turczyn, O. M. Piaskowska, Kodeks postępowania cywilnego. Postępowanie procesowe. Komentarz aktualizowany, LEX/el. 2023, art. 191(1).
[3] Judgment of the Court of Appeal in Łódź of 30.10.2020, I ACa 1050/20, LEX No. 3108148.
[4] Towards decriminalisation of defamation, Resolution 1577 (2007), para. 17.1
[5] Commission Recommendation (EU) 2022/758 of 27 April 2022 on protecting journalists and human rights defenders who engage in public participation from manifestly unfounded or abusive court proceedings (‘Strategic lawsuits against public participation’) (OJ L.2022.138, p. 30).
[6] M. Kurowski [in:] Kodeks postępowania karnego. Tom I. Komentarz aktualizowany, ed. D. Świecki, LEX/el. 2024, art. 17.
