From Web Police to Thought Police? Poland's new reforms

Article published on Feb. 5, 2016
Article published on Feb. 5, 2016

We spoke to Piotr Kładoczny from the Helsinki Foundation for Human Rights about new Polish Internet surveillance laws. In his view: "We should remember that this won't be the last 'change for the better'. The Sejm has been working on yet more legislation that puts human rights at risk. [...] Disregarding the involvement of the international community, nobody will solve this crisis for us."

The newly passed amendments to telecommunications and Internet law increase the authority of the police and other services (including the Central Anti-Corruption Bureau and the Internal Security Agency) when it comes to accessing the Internet data of Polish web users without prior notice. This right can be called upon to "prevent or detect crimes", "save lives or public health", "facilitate investigations" or "implement legal actions".

Given the rather vague nature of these phrases, the merit in the fear that such rights can be abused. Among other things, the authorities now have the right to: control what data is downloaded and transferred, freely access users’ browsing history and inspect users' data collected through cookies. They will still not be allowed to access users’ e-mail or chat messages without legal permission, as was already the case.

The changes are not only strongly criticised by the opposition, but also by human rights organisations such as Amnesty International. AI has voiced concerns that the amendment contradicts Poland’s international and regional commitment to human rights and has initiated a petition calling for the laws to be changed. So far it won the support of over 3,570 people. An online initiative, #unfollowme, has also been launched on social media. Today, a 12-hour protest is being held in front of the Presidential Palace.   

The question that has lingered since the beginning of the crisis remains unchanged: will such action remain limited to protests and petitions? Shall we, as Polish and European citizens, rely on the intervention of the EU and human rights organisations? Or would it be a cleverer idea to realistically assess the geopolitical and economic position of Poland –leaving any illusions where they belong – and try and solve the crisis ourselves?

We asked Piotr Kładoczny, a member of board at the Helsinki Foundation for Human Rights, for a comment on this issue.

cafébabel: Recently, we have seen a lot of drastic legal changes in Poland. Including changes to the Constitutional Tribunal, the public media and now a new law giving police and secret services the right to invigilate Internet use. All have been introduced without citizen consultation and infringe on our right to privacy and speech freedom. Are Law and Justice breaching human rights?

Piotr Kładoczny: Within the past few months the Sejm (the lower chamber of Polish parliament. ed.) has passed a whole collection of controversial laws, which in our opinion could constitute a serious threat to the standards of human rights protection. The new amendments to regulation relating to the Constitutional Tribunal – passed in a flash – aims de facto at paralysing its functionality. At present, we are experiencing a constitutional crisis in Poland, within which the ruling majority is trying to change the way the whole country works, without also having to change the Constitution.  

The most recent amendment to policing law was initially meant to do justice to a 2014 decision by the Constitutional Tribunal on the issue. However, what was agreed upon has been modified and in its present form it not only ignores the previous agreement but also creates new threats to privacy. The new law has been passed without any citizen consultations and without the possibility of having experts’ opinions on it (as was the case with the changes to the Tribunal itself).

On this occasion, it is worth being reminded that Poland has also implemented a new law relating to public media. I am far from idealising the situation in the Polish media as it wasbefore this incident, however the new law contradicts all international guidelines concerning public media. According to such guidelines, media should be as independent from the public administration as possible, thus also independent from politicians. Meanwhile, in the Polish case, public media are fully controlled by the state.

All of these laws have a vital importance when it comes to having a functioning democratic system in a country. In my opinion, the foundations of this system have been undermined, and this directly translates into a threat to human rights.    

cafébabel: What consequences will this new law have on how we experience daily life?

Piotr Kładoczny: During discussions when implementing the law relating to the Constitutional Tribunal I often heard voices saying that the Tribunal is a political institution whose decisions have no impact on wider society. Meanwhile, the truth is that it is a vital element of the Polish system of human rights protection. Citizens have the right to appeal to this Tribunal to draw attention to human rights infringements that exist in regulations that do not respect citizens liberties as stated in the Constitution. Without an operational and independent Constitutional Tribunal, the Polish system of human rights protection cannot function properly.

The amendments to policing law gives police services the right to conduct mass surveillance. Such services, practically free from monitoring in this domain, will be able to access and gather information about our telephone conversations and our Internet activity, all without informing citizens why their data is being accessed and recorded (the new regulation does not include such a safeguard). Numerous NGOs have tried to intervene on this issue, in vain. 

We should remember that this is not the end of [PiS’] "changes for the better". The Sejm has been working on new laws that, in my opinion, could constitute a further threat to human rights. Let’s take, for instance, the proposal to merge the posts of Justice Minister and Public Prosecutor General. If this occurs, all legal prosecutors will be supervised by the Justice Minister, which may influence the effectiveness and objectiveness of investigations in a substantial way, while also having negative repercussions for both the victims and perpetrators of crimes.

cafébabel: Which organisations should intervene in this situation? When and how should it take place?

Piotr Kładoczny: In my eyes, the continuing constitutional crisis in Poland requires international attention. Poland is a member of the European Union and the Council of Europe, and this implies an obligation to respect and protect human rights and the principles of a democratic rule of law.  

In January, the European Commission announced that it would start the procedure of investigating the rule of law in Poland – an unprecedented step for a member state. This procedure is at present in its initial stages – the Commission has asked the Polish government for clarifications.    

As for the Constitutional Tribunal, we are waiting for the opinion of the Venice Commission of the Council of Europe. However, the opinions of the Commission are not legally binding and the decision whether or not the recommendations indicated will be introduced rests entirely on the Polish government.

Both the European Commission and the Venice Commission monitor legal systems first and foremost, therefore individual pleas will not be considered. I can already imagine a plea to the European Court of Human Rights by someone who indicates a legal infringement in Poland, and could not be helped at home due to a paralysed Constitutional Tribunal.  

However, disregarding individual pleas and the attention of the international community, I am of the opinion that this constitutional crisis can be solved by no one other than Poland itself.

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Piotr Kładoczny is a doctor of law, head of the Legal Intervention Program in the HFHR. He is involved in legislative work relating to the reform of the European Arrest Warrant.