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This week, the Senate will vote on a bill that adds Article 255b to the Polish Criminal Code, criminalizing the online dissemination of recordings depicting the commission of selected prohibited acts.

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Ordo Iuris considers pathostreaming a harmful phenomenon, but points out in its opinion that the bill fails to define it and covers only a fragment of it, opening the door to arbitrariness.

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In the Ordo Iuris Institute’s view, the act violates the constitutional principles of specificity (Article 42(1)) and proportionality (Article 31(3))—the penalty for dissemination can be harsher than the one for the underlying act.

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The penalties will fall not only on pathostreamers, but also on journalists, witnesses, and citizens who expose abuses, which endangers freedom of speech (Article 54(1) of the Polish Constitution).

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Ordo Iuris recommends rejecting the bill or narrowing its scope, and—should it be enacted—that the President use the right of veto.
 

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This week, the Polish Senate will vote on whether to adopt or reject a bill banning pathostreaming. The bill adds Article 255b to the Criminal Code, criminalizing the dissemination—via an information and communications network, in the form of image or sound—of content depicting the commission of selected prohibited acts. Although it is intended as a response to an important social problem, the bill threatens the freedom to obtain and disseminate information guaranteed by Article 54(1) of the Polish Constitution. By punishing the public dissemination of recordings depicting the commission of a prohibited act, its sanctions reach not only pathostreamers, but also journalists, eyewitnesses, and ordinary internet users who publicize and condemn violence, abuses, and threats. The effects of the bill, moreover, extend further than the penalty facing the individual: through its linkage with the EU content-moderation system (the DSA), the regulation becomes a tool for the extrajudicial removal of a broad category of material of major significance for public debate.

The Ordo Iuris Institute has prepared an opinion on the bill. Its authors point out that pathostreaming is a harmful phenomenon, but that establishing this fact alone does not settle whether its criminalization is justified. Criminal law must remain within the constitutional bounds of specificity and proportionality—and the bill does not observe those bounds. Nor does the bill define the phenomenon it is meant to combat, and it covers only a fragment of it. The absence of a definition of pathostreaming—a phenomenon whose boundaries are hard to delineate—opens the door to arbitrariness and creates constant pressure to extend the ban to further forms of conduct. This danger was also flagged by opinions submitted during the work in the Sejm by both the Supreme Court and the National Chamber of Legal Advisers.

In the assessment of Ordo Iuris, the bill violates the principle of specificity (Article 42(1) of the Polish Constitution). The way the acts are listed in Article 255b § 1 of the Criminal Code does not allow the addressee of the norm to reconstruct the limits of criminal liability—it is unclear whether it refers to the titles of the chapters of the Criminal Code or to the protected legal interests. In addition, the sanctions contained in the bill are disproportionate (Article 31(3) of the Polish Constitution). Criminalization covers every public sharing of a recording, regardless of who carries out the dissemination and for what purpose, and the penalty for the dissemination alone can be harsher than the penalty for the underlying act (see Table 1).

The bill also threatens the freedom of speech guaranteed by Article 54(1) of the Polish Constitution. Criminal liability will extend not only to pathostreamers, but also to journalists, witnesses, and citizens who publicize abuses—including recordings of war crimes, brutality by those in power, or prohibited acts committed by illegal immigrants. Content of high importance for public debate—content that stirs public reaction, sparks discussion, or documents harmful practices—would be left without protection against systemic silencing. The Ordo Iuris Institute points out that the act will produce a chilling effect and—through its coupling with the architecture of the DSA (the EU Digital Services Act)—an extrajudicial, decentralized form of censorship. Expanding the national catalog of prohibited acts automatically broadens the scope of “illegal content” that platforms must remove and that trusted flaggers can report on a priority basis—without a court judgment and without any real procedural protection for the person sharing the content.

Ordo Iuris recommends that the Senate reject the bill in its entirety or introduce amendments limiting its scope as to the persons it covers. Preserving the bill’s objective while significantly reducing its negative consequences would be possible by narrowing criminalization to cases in which the person disseminating the content is the perpetrator of the underlying act (acting in concert with the perpetrator) or acts in order to obtain a financial or personal benefit. If the bill is adopted unchanged, it will be justified for the President of the Republic of Poland to use his right of veto (Article 122(5) of the Polish Constitution).

“Pathostreaming is certainly a harmful phenomenon, but this bill—in the name of, or under the pretext of, combating it—builds a censorship mechanism and therefore carries more risks than benefits. Instead of a precise provision, we get a vague ban that, combined with the DSA system, will make it possible to remove from the internet content of key importance for public debate, without a court judgment and without protection for the person publishing it,” notes Atty. Rafał Dorosiński, of the Management Board of the Ordo Iuris Institute.

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Source of cover photo: iStock

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