The parliamentary, local government and European Parliament elections are behind us. Each was preceded by an election campaign – a period when candidates present their manifestos and the public is more interested in them. This is a time when information about people seeking votes spreads extremely quickly, which can contribute to the dissemination of disinformation or untruths.
Spreading disinformation – what does the Election Code say
Article 111 of the Election Code is intended to prevent the spread of false information during an election campaign.
It gives candidates or representatives of electoral committees the right to bring such cases to court.
In the petition (Polish: “wniosek w trybie wyborczym”) they can, inter alia, ask the court to:
- Prohibit the dissemination of such information
- Order the rectification of such information
- Order the publication of a response to the disseminated information infringing personal rights
- Order the publication of an apology
- Order the contribution of up to PLN 100,000 to a public benefit organization
This wide range of claims can only be made by a candidate during the election campaign, i.e. from the day the election is announced until 24 hours before polling day.
The regulations provide that the petition is to be examined expeditiously, i.e. within 24 hours of its receipt by the court, which will immediately deliver a decision concluding the proceedings in the case together with a statement of reasons. The parties have a further 24 hours to file an appeal, which should also be heard within 24 hours of receipt by the appeal court.
Election lawsuits – what are the rights of the other party
Petitions to bring an action under the Election Code are heard by the court in non-contentious proceedings. The candidate’s opponent is not called a defendant, but a participant. However, this does not deprive them of the right to defend and present their position in the case.
Although Article 111 of the Election Code does not explicitly mention the participant’s right to file a reply, in practice the courts oblige the participant to present their position in writing. However, this does not extend the time limit for hearing the case, which, as a reminder, is 24 hours.
Therefore, a participant against whom allegations of dissemination of false information are made may be given only a few hours by the court to read the petition, collect evidence and present it, together with relevant arguments, in a pleading.
Can the action relate to press articles
According to the literal wording of the regulation, an action brought under the Election Code may relate to campaign material and statements or other forms of campaigning containing false information.
In practice, such actions are often brought by politicians standing for election to counter information unfavourable to them in press material published in print or online. The question therefore arises as to whether press material can be considered campaign material or a form of campaigning.
During the European Parliament elections campaign, in a case brought by a well-known politician, the Regional Court in Krakow held that a press article was neither campaign material nor a form of campaigning and that the press were not obliged to refrain from publishing information about politicians during the campaign. The publication of materials on candidates during this period does not make the journalist or press publisher a campaigner, but rather constitutes the fulfilment of the function of the press, which, in a democratic state under the rule of law, is to fulfil the citizens’ right to information about public life. The Regional Court therefore agreed with the argumentation of the law firm representing the publisher and dismissed the politician’s claims in their entirety.
Is any election lawsuit a SLAPP
Each case has its own peculiarities and it cannot be ruled out that a press publication in specific circumstances may constitute campaigning.
Irrespective of the outcome, however, taking legal action forces the press to devote time, personnel and financial resources to rapidly engage in the proceedings and present their position.
In this context, the instrumental use of the mechanism under Article 111 of the Election Code can be classified as SLAPPs, i.e. strategic lawsuits against public participation aimed at suppressing debate, which are increasingly criticised by freedom of speech and press freedom activists.
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