Poland: Proposed law set to boost prominence of controversial public broadcaster

Legislative changes passed by Poland’s government will provide the country’s politicised broadcaster with increased prominence.

In November, the Council of Ministers adopted the Electronic Communications Act and proposed changes to the country’s Broadcasting Act. Details of the proposals had remained scarce up until two weeks ago when local media reported that the changes mainly covered the “must carry, must offer” principle – a principle that outlines which stations must be made available by pay TV operators.

Wirtualnemedia.pl reported that the current Broadcasting Act ensures that seven terrestrial television stations – when the signal was broadcast in analogue – are covered by this rule: TVP1, TVP2, TVP3 (regional branches), Polsat, TVN, TV4, and TV Puls.

However, Poland’s ruling Justice and Peace party (PiS) now intends to boost the presence of national media by mandating that only channels of public broadcaster Telewizja Polska (TVP) will be subject to the statutory “must carry, must offer” principle. With the draft amendment, the statutory list will cease to cover the commercial nationwide TV stations Polsat, TVN, TV4, and TV Puls. Instead, the three current TVP stations (TVP1, TVP2, and TVP3) are to remain on the list while TVP Info and TVP Kultura would be added to the list.

Additionally, the draft bill proposes that public TV channels covered by the statutory principle must occupy the first five places in the operators’ Electronic Programme Guide (EPG) of set-top boxes. The remaining TVP stations broadcast on terrestrial television are to be placed in the next positions, while the remaining terrestrial channels covered by the “must carry, must offer” principle are to be added to the decoder lists. Operators will also have to offer channels in the a la carte model (that is, sell them individually).

“Combining the must-carry principle with the obligation of appropriate positioning in the EPG is justified by the significant number of programmes available in the offer of distributing operators and the risk of pushing publicly-valuable programmes to positions that are more difficult to access for the viewer. The distribution obligation alone will not ensure convenient access to programmes of public value for the viewer,” the draft bill’s authors wrote in the justification.

Meanwhile, local media reported that satellite platforms will also be obligated to provide subscribers with the appropriate regional version of TVP3. Currently, Polsat Box and Canal+ only offer TVP3 in the Warsaw version on satellite television. This obligation follows a statement made in June 2022 by former TVP President, Jacek Kurski. At the time, Mr. Kurski revealed that work was underway to amend the regulation to ensure that all versions of TVP3 were offered via satellite.

“It is inappropriate that viewers using satellite platforms (more than 30% of Polish households) should be deprived of access to relevant public regional programmes. This is also important in the context of regional and local security, given that regional programmes can best respond to the needs of local communities, in the event of natural disasters or other emergencies in the area,” a statement justifying the need for the amendments said.

Broadcasters and operators have both appealed against the law change, however. In an appeal, reportedly signed by organisations including the Polish Chamber of Electronic Communications (PIKE), the group argued the changes would “deeply interfere with the freedom of economic activity and business models that are behind the success of the Polish media market so far, setting non-market and arbitrarily defined rules for cooperation between entrepreneurs, building offers and distributing content to customers, which either do not result from the European Code of Electronic Communications or are contradicting them. The proposed regulations are a revolution in the rules of the broadcasting market and a blow to diversity, choice and access to rich content in Polish, which will not only affect broadcasters, operators and creators, but above all Polish viewers.”

While ensuring the prominence, visibility and availability of independent public media is critical for well-functioning and informed democracy, the independence of TVP has been a serious cause for concern recent years. Under the PiS government, political influence over the public broadcaster has resulted in TVP being widely criticised for its biased coverage of the 2020 presidential election; the broadcasting of hate speech; and its own attacks, in the form of SLAPPs, on critical voices.

Because of this politicisation, the largest Polish opposition party, Civic Platform, recently submitted a bill which would look to privatise the broadcaster completely. This idea has been suggested by the party’s deputy leader, Rafał Trzaskowski. “Poles deserve real public television, not like Russia Today, but like the BBC,” Mr. Trzaskowski said.

Other notable draft amendments include:

• The National Broadcasting Council will be able to add up to 30 additional channels to the list by regulation. The draft bill states that the Broadcasting Council would be obligated to include at least those public television programmes that are distributed digitally by terrestrial diffusion in a multiplex, but it may also include other programmes on the list by taking into account considerations of public interest.
• Wirtualnemedia.pl reports: “the law would retain a provision on ‘the implementation of the must-carry obligation by operators free of charge and a clear indication of its performance at the operator’s own expense’. The act is also to contain ‘clear confirmation that the entity obliged to distribute programmes may start distribution after obtaining the broadcaster’s written consent.’”
• Local media also revealed that the draft bill proposes the possibility to issue television licences for less than 10 years. Such licences could be issued at the broadcaster’s request or “in the event of a need to equalise the duration of the rights to use frequencies on the same multiplex”, the draft bill said.

The draft amendments to the Broadcasting Act will now go to the Sejm (the lower house of Poland’s bicameral parliament). It may still be amended during parliamentary work, local media say. However, it is unknown when the parliament will deliberate on the proposed amendments.