On 1 February 2021, the Polish Ministry of Justice published a bill on the Protection of the Freedom of Speech on Social Media. The bill’s aim is to provide a legal framework to protect social media users from platform owners’ arbitrary decisions to delete their accounts or their posted content. Failure to comply with the obligations as set out in the bill can result in fines amounting to up to PLN 50,000,000 (approx. EUR 11,075,000).
The bill concerns social media platforms (defined as services provided by electronic means which allow users to share any content with other users or the public) which are used in Poland by at least one million registered users. This definition is quite ambiguous since it is unclear whether it covers all websites that allow its users to publish content, e.g. blogs. Also, the bill does not indicate how to determine the number of users, especially whether one should take into account all accounts including fake accounts, or accounts set up by foreigners.
New obligations for social media platforms
The bill imposes several new obligations on the owners of these social media platforms. In particular, these platforms will be obliged to:
- appoint their representatives in Poland whose role will be to represent the platform in all court and out-of-court activities; to deal with user complaints; to provide answers and information to institutions, and to participate in trainings held by the President of the Electronic Communications Office on the current legal status regarding user complaints;
- implement internal investigation proceedings in matters relating to user complaints concerning the restriction of access to content, the restriction of access to user profiles, and the dissemination of unlawful content;
- publish the terms and conditions of the social media platform which will contain the above rules on internal inspection proceedings;
- respond to user complaints in the above scope within 48 hours of the complaint being filed.
Official complaint procedure
Those users who are dissatisfied with the way the platform has handled their complaint will be able to lodge a complaint with the Council for the Freedom of Speech (the public authority appointed by the Sejm (the lower house of the Polish Parliament)) within seven days of receiving the platform’s decision. The Council will then have seven days to decide whether to order the platform to restore access to the profile or content. The case will be resolved based on the evidence provided by both the user (together with the complaint) and the platform (within 24 hours from the receipt of the information that the complaint has been filed with the Council). The platform will then have 24 hours to comply with the Council’s decision. The platform, or user, will be able to appeal against the Council’s decision to the court within 30 days of receiving the decision.
New retention obligations in detail
The bill also imposes on all providers of services by electronic means an obligation to store personal data of their users for 12 months following the day of making the connection (this term is not further clarified in the bill). Should any criminal content be found, the public prosecutor will have the authority to ask the service provider, or its representative in Poland, to provide them with information, in particular concerning the user’s data and publications on the online social media platform. In addition, if it is found that the content disclosed on the online social medial platform contains publication/s with pornographic content involving minors, content that praises or incites the committing of acts of a terrorist nature, or that further access to this publication creates the risk of causing significant damage or causing effects which are difficult to reverse, the prosecutor can immediately issue a decision ordering the service provider to prevent access to this content.
The bill also stipulates a new type of lawsuit – the so called "blind lawsuit", i.e. the possibility of filing a lawsuit for the protection of personal rights without specifying the defendant's data which is presently necessary in order to file a statement of claim. According to the bill, the indication of the URL where the offensive content was published, the date and time of publication, and the name of the user's profile or login will be sufficient to successfully bring about a claim.
The bill was sent to the Chancellery of the Prime Minister on 22 January 2021 with the request that it be entered into the list of legislative works of the Council of Ministers. Once the bill is published on the list of legislative works it will be referred for arrangements, public consultations, and opinions. The bill will certainly evolve in the further stages of the legislative work.
Authored by Ewa Kacperek and Weronika Wolosiuk