New Anti-terrorism Law Allows Blocking of Online Media

Update: 26 Sep 2017 State replied
Year 23 Jun 2016 Country Poland Category Other acts having chilling effects on media freedom Source of threat State Partner Index , AEJ , CPJ , EFJ/IFJ Alert level Level 2
23 Jun 2016 Poland Other acts having chilling effects on media freedom State Index , AEJ , CPJ , EFJ/IFJ Level 2

A new anti-terrorism law came into effect on 22 June 2016 after it was ratified by the Polish President Andrzej Duda. The law was successfully passed by two parliamentary chambers of the Sejm earlier this month. The law gives Poland’s intelligence agency, the ABW (Agencja Bezpieczeństwa Wewnętrznego), the right to “order the blocking or demand that the electronic open source service administrator block access to information data”, thereby giving the agency the right to shut down online media outlets, including websites and television programmes, Kulisy24 reported. Websites can be blocked for up to five days prior to obtaining permission by higher prosecution authorities, and up to 30 days if permission is granted, with the option to renew it for up to three months. Authorisation for a temporary access ban can also now be granted by the minister of justice. The legislation does not grant power to the source administrator to appeal against such a decision. Watchdog website Kulisy24 criticised the legislation, writing that it is not known how blocking will be executed and that the ABW is not obliged to publish its blocking order. The Polish NGO Fundacja Panoptykon started a petition against the law in late April and collected just short of 8,690 signatures by 20 June. Together with the NGO e-Państwo, it also published a protest letter addressed to the Polish president, which was shared by a number of media and NGOs, including the Helsinki Foundation of Human Rights.

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Follow-ups

26 Sep 2017 : The CoE Commissioner for Human Rights recalls that any restrictions on access to Internet content should be based on a clear and predictable framework affording guarantee of judicial oversight to prevent possible abuses.

Relevant CoE instruments Disclaimer

22 Jun 2016 : Opinion on the Act of 15 January 2016 amending the Police Act and certain other Acts, adopted by the Venice Commission at its 107th Plenary Session (Venice, 10-11 June 2016)

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20 March 2018

On 20 March 2018, the European Court of Human Rights issued its Grand chamber judgment on Mehmet Altan’s case. The Court found there had been a violation of Article 5 § 1 (right to liberty and security) and a violation of Article 10 (freedom of expression) of the European Convention for Human Rights. With regards to article 5 §1, according to the Court findings, “Mr Altan’s continued pre-trial detention, after the Constitutional Court’s clear and unambiguous judgment of 11 January 2018 (…), could not be regarded as ‘lawful’ ”. The Court held that “for another court to call into question the powers conferred on a constitutional court to give final and binding judgments on individual applications ran counter to the fundamental principles of the rule of law and legal certainty, which (…) were the cornerstones of the guarantees against arbitrariness”. Under Article 10, the Court held in particular that “there was no reason to reach a different conclusion from that of the Constitutional Court, which had found that Mr Altan’s initial and continued pre-trial detention, following his expression of his opinions, constituted a severe measure that could not be regarded as a necessary and proportionate interference in a democratic society”. The Court pointed out in particular that “criticism of governments and publication of information regarded by a country’s leaders as endangering national interests should not attract criminal charges for particularly serious offences such as belonging to or assisting a terrorist organisation, attempting to overthrow the government or the constitutional order or disseminating terrorist propaganda”.

20 March 2018

On 20 March 2018, the European Court of Human Rights issued its Grand chamber judgment on Şahin Alpay’s case. The Court found there had been a violation of Article 5 § 1 (right to liberty and security) and a violation of Article 10 (freedom of expression) of the European Convention for Human Rights. With regards to article 5 §1, according to the Court findings, “Mr Alpay’s continued pre-trial detention, after the Constitutional Court’s clear and unambiguous judgment of 11 January 2018 (…), could not be regarded as ‘lawful’ ”. The Court held that “for another court to call into question the powers conferred on a constitutional court to give final and binding judgments on individual applications ran counter to the fundamental principles of the rule of law and legal certainty, which (…) were the cornerstones of the guarantees against arbitrariness”. Under Article 46 (binding force and execution of judgments) of the Convention, the Court held that it was incumbent on the respondent State to ensure the termination of Mr Alpay’s pre-tria detention at the earliest possible date. Under Article 10, the Court held in particular that “there was no reason to reach a different conclusion from that of the Constitutional Court, which had found that Mr Alpay’s initial and continued pre-trial detention, following his expression of his opinions, constituted a severe measure that could not be regarded as a necessary and proportionate interference in a democratic society”. The Court pointed out in particular that “criticism of governments and publication of information regarded by a country’s leaders as endangering national interests should not attract criminal charges for particularly serious offences such as belonging to or assisting a terrorist organisation, attempting to overthrow the government or the constitutional order or disseminating terrorist propaganda”.
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