Since the systemic transformation in Poland in 1989, public media have varied in the intensity of presenting the ruling camp’s viewpoint while simultaneously allowing opposing narratives. However, since the Law and Justice Party (PiS) took power in 2015, the media have fully become a propaganda tool for the government, thus reverting to their worst traditions from the People’s Republic of Poland (PRL) era.
Under the nominees of the previous government, numerous materials that discredited the opposition created a vision of it being in service to other countries (like the infamous “für Deutschland”) or portrayed the PiS government as a series of countless successes (such as material akin to North Korean propaganda before the 2020 presidential elections) were broadcasted. All this clearly showed the significant threat that partisan public media pose to public debate and pluralism.
Current State
Currently, the shape of public media is regulated by several legal acts, including the Radio and Television Act, which states in Article 26 (2) that public television is constituted by the company Telewizja Polska (Polish Television) – Joint Stock Company, and in subsection 3, that public radio is constituted by Polskie Radio (Polish Radio) – Joint Stock Company and regional radio companies.
The boards of these companies, as well as other personnel compositions of the public broadcasting and television units and the Polish Press Agency, are appointed and dismissed by the National Media Council, an extra-constitutional body created in 2016, which took over some of the competencies of the National Broadcasting Council (KRRiT) and is currently mostly staffed by PiS nominees. According to the jurisprudence of the Constitutional Tribunal, this situation is unconstitutional[1].
We cannot forget about the financial situation of public media, which in 2023 received a total of 3.32 billion PLN from the state budget (citizens’ taxes)[2]. Without these funds, their further operation in the current form would be uncertain, as each of the mentioned entities anticipates a loss in their financial plan.
Both TVP (Polish Television) and Polish Radio (along with regional stations) are commercial law companies, which means their operation is regulated by the Commercial Companies Code. Furthermore, these entities are sole-shareholder companies owned by the State Treasury and thus fall under the regime of the Act on the Management of State-Owned Property. This means that the relevant minister[3] is the chairman and the sole member of the General Meeting of Shareholders.
Future of Public Media – Coalition Proposals
It is worth dedicating some space to show how the parties comprising Donald Tusk’s government view the future of public media, especially in terms of safeguarding them from the kind of politicization that occurred under the Law and Justice (PiS) government.
Civic Coalition (KO)
The Civic Coalition (KO) is not very specific in its vision of the future of public broadcasters. We can read that the KO wants “depoliticization and socialization” (whatever that means) of public radio and television, the abolition of the National Media Council (RMN), and the cessation of TVP’s and other public media funding, as well as the transfer of 2 billion PLN from TVP to cancer treatments[4]. The KO does not specify what this “depoliticization and socialization” would look like. Due to the briefness of the KO’s proposals, it is hard to address them in more detail.
Poland 2050
By far the most extensive (29 pages of publication) proposition on changes concerning public media comes from Poland 2050, which, through its think tank – Strategies 2050 Institute [5], has prepared a whole report dedicated to this issue. The Institute advocates for many changes, starting from changing the structure of public media (transforming the existing companies into non-commercial entities focused on serving the public interest), sustainability issues, and the impact of the media on the environment,[6] to financing models that would ensure independence from political power.
The Poland 2050’s approach suggests a thorough overhaul of the current system, aimed at truly independent public media serving social needs rather than political interests. The most significant of these would concern existing media companies, the dissolution of the National Broadcasting Council (RMN) and the National Broadcasting Council (KRRiT), and a completely different model of financing public media.
The Strategies 2050 Institute would like to transform the existing media companies, which would result in the creation of 17 new commercial law companies: Media Polskie SA (which would take over the assets and tasks of the Polish Press Agency, Polish Radio, and TVP) and 16 regional media companies, which would take over the assets and tasks of local Polish Radio stations, as well as local TVP branches. Such a solution aims to increase the organizational and legal independence of media companies. Regarding the issue of the position of the managing personnel of public media companies, the party of the current Speaker of the Sejm postulates the separation of the functions of the CEO[7] and editor-in-chief, as well as the introduction of permanent and unchallengeable terms of office.
As for the supervision of public media, in the system proposed by the abovementioned think tank, at the national level, it would be exercised by the KRRiT (also acting as the general assembly in media companies) and the Public Media Programming Council (acting as a tool for social supervision of the programming activities of public media). In this plan, it is proposed to dissolve the RMN and transfer its competencies back to the KRRiT, which would include representatives from each parliamentary club, as well as one member appointed by the President and the Senate, which, combined with the tightening of the criteria for political neutrality concerning KRRiT[8] members and limiting their terms to 5 years, would lead to preventing single political force to control public media.
The KRRiT would also select the supervisory boards and presidents of all public media companies in open competitions broadcasted online. In the long term, Strategies 2050 would also like changes to the Constitution of the Republic of Poland and the renaming of the KRRiT to the National Media Council or the National Council for Mass Media.
The Institute, in its plan for new public media, also addresses the issue of their financing. It proposes moving away from the RTV license fee in favor of the Polish Media Fund, which would be financed either from deductions from taxes collected from digital and advertising activities in Poland or a legally determined percentage of the state’s income from VAT on advertisements’ sales, in exchange for limiting the amount of advertising in public media in both cases. The KRRiT would be the fund’s manager, transferring 90 percent of the funds to public media companies according to a transparent and open algorithm, while the remaining 10 percent would go to commercial entities in exchange for the production of public mission-driven programs through competitions.
Although the proposals of the Strategies 2050 Institute are the most fundamental in reforming public media, many doubts can be raised. The fundamental problem remains the lack of safekeeping in such a system against repetition of what was done by the Law and Justice party. What is more, before the takeover of public media by PiS, there were already provisions in the Radio and Television Act envisioning open and transparent competitions for positions on supervisory boards in public broadcasting firms, specifying the duration of terms of office for management boards of public broadcasting and television companies, yet they have not been preserved to this day. Also, the method of financing could be easily changed, which could de facto provide the future majority with the ability to influence public media.
The New Left
The New Left intends to create “professional, pluralistic public media with established standards for conducting a balanced public debate,” which would be ensured by, among other measures, creating a transparent system for recommendations and selection of individuals in supervisory roles in public media, with the participation of social organizations in this process[9]. Moreover, this formation wants public media to be “freed” from commercial advertising and calls for the dissolution of the National Media Council.
Just as with the Civic Coalition’s proposals, questions arise regarding the ultimate nature of the proposed changes. Moreover, the issue of financing public media in the model presented by the Left remains open. Due to the lack of details, it can be assumed that it is to be modeled on the BBC financing example (given the frequent citation of this station as a benchmark[10]), which may share the same flaws, such as the problem of decreasing RTV license fee revenues[11].
In relation to the proposals of each of the parties discussed above, the same issue arises. Such changes are insufficient to protect against the re-politicization of public media.
Recommendations
With the above in mind, privatization should be considered, as well as other legislative changes that could lead to a reduction in politicians’ influence on the media. The discussion on the sale of public media companies is not unique from a global perspective. An example is an ongoing debate on this topic in the United Kingdom[12] and other countries[13], or the privatization of the French broadcaster TF1 in the 1980s by the administration of François Mitterrand, a member of the Socialist Party. Such debate would also not be anything new in the history of our country.
Similar ideas already appeared in 2007[14] and a year later the ruling Civic Platform (PO) was considering splitting TVP into a commercial part and a part dedicated to fulfilling its public mission[15]. Many of the arguments raised at that time remain valid today[16]. The last eight years have only provided additional reasons for privatizing public media in Poland.
It is worth noting that such change will not be possible without making legislative alterations (e.g., in the Radio and Television Act), which means it is a concept that could be realized only after the change of the President.
For quite some time, we have seen the introduction of solutions in the field of public law aimed at ensuring security concerning companies operating in so-called key sectors, regardless of the form of ownership. Today, public administration bodies can control foreign investments in such areas. The Minister responsible for state assets has the so-called golden veto right in energy companies, the President of the Office of Competition and Consumer Protection (UOKiK) exercises antitrust control, while regulatory bodies oversee infrastructure sectors.
Therefore, there is no contraindication to introducing similar mechanisms for existing public media, especially since the current act on the control of certain investments provides a basis to consider TVP as a protected entity, which would only require a change of regulation[17]. Another solution could be to amend the act on the control of certain investments, in a way that directly includes Polish Television and Polish Radio, or the introduction of some kind of golden veto in relation to them, the exercise of which could, for example, be transferred to the National Broadcasting Council.
Of course, one could raise an issue of what entity would take on the public service mission in the media after the privatization of TVP and Polish Radio[18]. However, there is no obstacle for commercial media to undertake this type of task by participating in tenders organized by the state. In the aforementioned ideas of the Strategy 2050 Institute, there is a postulate to allocate a portion of the funds at the disposal of the KRRiT for mission programs in private media.
This idea could be expanded. Instead of maintaining an unprofitable behemoth – TVP, a much better idea would be to allocate the entire fund for the fulfillment of the public mission in commercial media (including a transformed TVP). In addition to the obvious relief to the budget, this would calm political disputes and ensure that no group would have control over the media.
Another argument for the privatization of public media companies is the increase in the efficiency of their operation. The positive impact of ownership changes on improving the condition of state-owned companies operating in a declining market can be observed in many areas. As we have already demonstrated[19], based on the example of national post-privatization in several EU countries, such change led to modernization, exploration of new markets, reduction in employment, and an increase in profitability.
Regardless of potential ownership changes in public television and radio companies, a reform of the KRRiT itself (or more broadly, the media regulation area) is necessary. It seems that changes in the Constitution are needed to increase the independence of the KRRiT. This is unfortunately necessitated by the briefness of the Constitution’s provisions regarding this body, as well as the political practice of the Third Polish Republic[20].
For this reason, for example, introducing an amendment to the Constitution to enhance the independence and protect the integrity of the KRRiT, incorporation of a fixed number of members with specified, individual terms into the Constitution seems justified, in a way that, for example, one member changes every year. Defining the method of electing members, requiring, for instance, a qualified majority in the Sejm in conjunction with the consent of the upper chamber and the President, would be a way to address this. Additionally, specifying requirements for individuals eligible to serve on the KRRiT would put an end to the current practice of politically motivated elections[21].
An interesting solution in this regard has been implemented by Germany by forming the Commission on Media Concentration, members of which are supposed to be specialists in the field of media and business, with half of them required to have judicial qualifications[22]. This corresponds to its authority concerning the control of concentration in the broadcasting sector. This model could be adapted in Poland, allowing the KRRiT to influence and control concentration in the radio and television sectors[23], thus addressing ongoing discussions and emerging doubts around the admissibility of considering media pluralism issues by the President of the Office of Competition and Consumer Protection (UOKiK) in such processes[24].
Summary
In summary, it is necessary to recognize that the current state of public broadcasting oversite is unconstitutional, as well as there is a limited possibility of “de-PiS-ification” of public media by the current government. Changes in the radio and television sector aimed at ensuring their independence from politicians are needed. One of the solutions to this problem is ownership changes within public media companies, combined with constitutional changes aimed at increasing the independence of the KRRiT. All these measures would limit the government’s ability to influence the media, making it more difficult to transform them into propaganda machines for those in power.
References
[1] See the judgment of the Constitutional Tribunal of December 13, 2016, case file K 13/16.
[2] E. Rutkowska, Jak nowa władza może przejąć media publiczne, DGP, October 24, 2023, https://serwisy.gazetaprawna.pl/orzeczenia/artykuly/9329034,jak-nowa-wladza-moze-przejac-media-publiczne.html.
[3] In this case, the minister responsible for culture and national heritage, as the execution of rights from shares belonging to the State Treasury in public media companies was transferred to him by regulation.
[4] Rozliczymy rządy PiS, 100konkretów.pl, https://100konkretow.pl/rozliczenie-rzadow-pis/ .
[5] The Strategies 2050 Institute itself emphasizes on its website that it is “part of the socio-political movement Poland 2050”, and many of its members are MPs from Poland 2050 or ministers recommended by this formation (e.g., Minister Pełczyńska-Nałęcz).
[6] A. Rudawski, Nowe media publiczne, Strategie 2050, May 17 2023, https://strategie2050.pl/plan-dla-polski/nowe-media-publiczne/.
[7] In the case of regional media companies, it is proposed to limit the management board to one person.
[8] The Strategies 2050 Institute proposes a ban on sitting in city and district councils and in provincial assemblies.
[9] Election programm KW Nowa Lewica, p. 27, https://lewica2023.org/wp-content/uploads/2023/08/program_Lewica_2023.pdf
[10] M. Jabłoński, Likwidacja TVP Info? Lewica chce, aby kanał był niezależny, DGP, December 29, 2022, https://www.gazetaprawna.pl/wiadomosci/kraj/artykuly/8619988,likwidacja-tvp-info-media-lewica-gawkowski.html
[11] P. Booth, In Focus: The case for privatising the BBC, p. 53–54, Institute of Economic Affairs, Aprill 28, 2016,
https://iea.org.uk/wp-content/uploads/2016/07/Booth-BBC-Interactive.pdf
[12] For example, proposals to privatize Chanel 4 or changes to the BBC. See M. Lesh, Privatise Channel 4,
Institute of Economic Affairs, April 12, 2022, https://iea.org.uk/privatise-channel-4/ P. Booth, In Focus The case for privatizing the BBC, Institute of Economic Affairs, April 28, 2016, https://iea.org.uk/wp-content/up-loads/2016/07/Booth-BBC-Interactive.pdf
[13] See D. Boaz, Top Ten Reasons to Privatize Public Broadcasting, Cato Institute, July 25, 2005,
https://www.cato.org/commentary/top-ten-reasons-privatize-public-broadcasting; C. Berg, S. Davidson, Against Public Broadcasting Why We Should Privatize The ABC And How To Do It, Connorcourt Publishing.
[14] J. Bierzyński, Nie bójmy się prywatyzacji publicznych mediów, Rzeczpospolita, October 29, 2007,
https://www.rp.pl/opinie-ekonomiczne/art8480291-nie-bojmy-sie-prywatyzacji-publicznych-mediow
[15] A. Nalewajk, G. Osiecki, Jak rząd podzieli TVP, Dziennik.pl, May 15, 2008, https://wiadomosci.dziennik.pl/polityka/artykuly/75682,jak-rzad-podzieli-tvp.html
[16] For example, drawing attention to the acceleration of the process of subordinating public media to politicians and increasing the temperature of the disputes around them or the difficult financial situation of TVP which was already apparent in 2007.
[17] Specifically, the regulations of the Council of Ministers on the list of entities subject to protection and the competent control bodies.
[18] Understood as: offering diverse broadcasts and other services in the field of information, journalism, culture tourism, entertainment, education and sport, which are to be characterized by pluralism, impartiality, balance and independence, high quality and innovation and integrity of the message. See art. 21 of the Radio and Television Act, https://isap.sejm.gov.pl/isap.nsf/download.xsp/WDU19930070034/U/D19930034Lj.pdf.
[19] M. Zieliński, Poczta bardziej państwowa – ekonomia i interes podatnika schodzą na dalszy plan, Analisys 9/2017, Civil Development Forum, June 6, 2017, https://for.org.pl/pliki/artykuly/2668_analiza-for-9-2017-poczta-bardziej-panstwowa-ekonomia-i-interes-podatnika-schodza-na-dalszy-plan.pdf
[20] See M. Cappello, The independence of media regulatory authorities in Europe, IRIS Special, European Audiovisual Observatory, Strasbourg 2019, p. 107.
[21] P. Tuleja (ed.), Constitution of the Republic of Poland. Commentary, ed. II, Wolters Kluwer, Warsaw 2023, p. 677–678
[22] J. Skrzypczak, Regulacje prawne dotyczące koncentracji kapitału w przedsiębiorstwach medialnych w wybranych krajach Unii Europejskiej, „internetowy Kwartalnik Antymonopolowy i Regulacyjny”, no. 7(6), 2017, p. 93.
[23] Some authors advocate for this. See C. Banasiński, M. Rojszczak, The role of competition authorities in protecting freedom of speech: the PKN Orlen/Polska Press case, European Competition Journal”,18(2), 2022.
[24] M. Derdak, Problem uwzględniania pozaekonomicznych czynników oceny koncentracji przez Prezesa UOKiK na przykładzie pluralizmu mediów, „internetowy Kwartalnik Antymonopolowy i Regulacyjny”, no. 4(11), 2022.
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