by Magdalena Gałczyńska, published in Onet.pl

• The Act referred to as the Spy Act has finally been passed by the Sejm and is awaiting the President’s signature. Among other things, it contains a provision on disinformation. The minimum penalty for spreading it would be 8 years imprisonment.
• ‘This provision could open the door to investigating whether journalists or NGOs have some kind of relationship with a foreign intelligence service, and whether their actions are intended to cause some kind of serious harm, says Counsellor Marcin Wolny of the Helsinki Foundation for Human Rights.
• ‘The very act of conducting such proceedings against certain individuals can create a chilling effect, give such a signal to keep their heads down,’ adds Onet’s interviewee.

Disinformation, namely a term that has so far not been clearly defined in the Penal Code, has now appeared in it. PiS’s so-called ‘Spy Act’, which was passed by the Sejm, namely an amendment to the Penal Code, contains a provision stating that the spreading of disinformation is to be punishable by at least eight years imprisonment.

The provisions read exactly as follows:

Whoever spreads disinformation involving the dissemination of false or misleading information with the aim of inciting serious interference in the constitutional system or economy of the Republic of Poland, an allied state or an international organisation of which the Republic of Poland is a member, or induces a public authority of the Republic of Poland, an allied state or an international organization of which the Republic of Poland is a member to perform or refrain from performing certain activities while participating in the activities of or acting on behalf of a foreign intelligence service shall be punishable by imprisonment for not less than 8 years.

At the same time, it should be noted that the Act does not contain a clear and unambiguous definition of disinformation.

‘We were very sceptical. Nothing has changed’

‘We were already very sceptical at the stage of writing an opinion on this bill,’ Counsellor Marcin Wolny of the Helsinki Foundation for Human Rights (HFHR) tells Onet.

‘We pointed out that the notion of disinformation is so vast in terms of content that it can lead to the instrumental initiation of criminal proceedings and the creation of a chilling effect against people who publish content. This could be journalists, social organisations or Internet users,’ he explains.

‘This provision could  open the door for investigations into whether these people have some kind of relationship with a foreign intelligence service, and whether their actions are intended to cause some kind of serious harm. And this could incite a chilling effect. In other words, a situation in which even a journalist will think twice before publishing content that is unfavourable to those who oversee the law enforcement agencies, including the special services. In other words: unfavourable to the authorities. This is definitely not a comfortable situation for people whose work involves monitoring the ruling party,’ the expert emphasises.

‘They will get the tools to monitor us’

Counsellor Wolny emphasises that much will depend on how the law enforcement agencies behave in practice.

‘In a democratic state governed by the rule of law, the risk of the instrumental use of the solutions in this Act, or specifically the provision on disinformation, is low. What else in a state that has been eliminating successive safeguards from the system and taking a very instrumental approach to the work of the services for years. I have no confidence in the law enforcement agencies in Poland today,’ says the lawyer.

‘Besides, the Acts governing the work of the services refer to the notion of espionage and not to a specific article of the Act. This means that in each of these new types of espionage, the services will be able to conduct operational and reconnaissance activities, including operational control. They will receive a tool for eavesdropping on us, checking our e-mails and reading our messages in instant messaging services,’ he points out.

‘Unfortunately, the solutions of this Act can be used to control people, who the services feel are criticising the government, with disinformation, regardless of whether or not they are actually misleading. Such an approach opens the door for them to check whether someone is cooperating with or acting on behalf of a foreign intelligence service, for example, with the use of operational control. And this will give them information that can be useful to the services and used for other purposes. This is where we return again to the lack of trust and lack of control over the services,’ concludes Counsellor Wolny.

‘Big Brother in the background. This is our reality’

He emphasises that, as a rule, the services should not perform operational activities against someone unless they suspect that someone is simultaneously spreading disinformation and acting for a foreign intelligence service.

‘In an ideal world, it would be the case that someone is first suspected of acting for a foreign intelligence service, and only then is a check conducted as to whether that person is spreading disinformation. However, I am seriously concerned that it may be the other way round in our country. There is a risk here that the services will use this open door from the disinformation provision instrumentally, to thoroughly examine specific people, including journalists. All they have to do is publish something that the authorities don’t like very much. After all, the services can always acknowledge that this is a kind of disinformation,’ the HFHR expert explains.

‘We are living in a reality in which the services receive approval for operational checks, namely for the use of wiretapping, without presenting any details, en masse,’ says Counsellor Wolny.

‘Requests for this, as demonstrated by the experience with Pegasus, are not properly reviewed by the courts. Such consent for wiretapping can be obtained for anyone and in almost any situation with regard to a serious crime. The rate of approvals given is very high, and this means that the services can do anything. And no one monitors the services,’ he points out.

‘We are living in a reality with Big Brother in the background. And, today, I cannot answer the question of how journalists and NGOs are supposed to pursue their professional mission in such realities. All the while looking over their shoulders to see if they will be acknowledged as people spreading disinformation? I don’t have an answer to that, we have to do our work,’ he concludes.

Translated by Roman Wojtasz