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Risks of restricting freedom of speech on the internet under the guise of protecting freedom of speech

Risks of restricting freedom of speech on the internet under the guise of protecting freedom of speech

Dodano: 2022-03-09

Entrepreneurs and experts warn against adoption of the bill proposed by the Ministry of Justice on protection of freedom of speech in online social networking services, called „Lex Facebook”. Not only is the bill inconsistent with EU law, but also due to its imprecise provisions it may become a tool in the hands of the ruling class for political fights in the internet.

The draft bill on protection of freedom of speech in social networking websites, developed by the Ministry of Justice, after public consultations, was sent on 22 January to the Chancellery of the Prime Minister with a request for entry in the list of legislative works of the Council of Ministers.

As we read on the Ministry’s website, the main premise of the bill is the creation of a new body – a five-member Freedom of Speech Council. The Sejm will elect its members from among experts for a six-year term by a 3/5 majority vote. The Council’s task will be to consider user appeals and complaints from trusted whistleblowers.

The goal of user complaints is to prevent the deletion of posts or blocking of accounts of Polish users if the posted content does not violate Polish law. The user will then be able to submit a complaint to the website. If the service does not restore the entry within 48 hours or maintains the block, the user will be able to file an appeal to the Council for Freedom of Speech. The Council may order that the blocked content or account be restored immediately. In case of non-compliance, the Council will be able to impose an administrative fine on the social network ranging from PLN 50,000 to even PLN 50 million. The proceedings are to be conducted electronically and the Council’s decision can be appealed to court.

The bill also envisages the introduction of the institution of so-called trusted signatories, who will be able to turn to the Council with complaints, i.e. with requests to mark a particular entry in online social networking services as ”disinforming”.

Entrepreneurs associated to the Lewiatan Confederation, Chamber of Press Publishers and experts therefore call for stopping work on the bill, especially in the context of its incompatibility with EU law and the assumptions of the Digital Single Market.

First of all, it is questionable that the new regulations use very broad and imprecise definitions and create highly discretionary evaluation criteria. Moreover, entities providing hosting and cloud services, on which social networking services are based, should be excluded from the application of the bill. Finally, the bill imposes a number of onerous obligations on e-service providers, such as reporting and data retention obligations. These increase the danger of online surveillance.

Theoretically, the 3/5 majority for appointing members of the Council is supposed to require a consensus between parties, as the authors of the draft argue, but the Parliament may at any time, by way of an amendment by a simple majority, establish other rules for appointing members. As a consequence, contrary to its name, the bill on protection of freedom of speech in social networking services may easily be used to politically motivat limitation of freedom of speech on the internet.

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