The public media have specific responsibilities during an election campaign. As publicly financed institutions, they are responsible for providing objective, reliable and balanced information.

During the election campaign, the public media have a number of responsibilities, such as ensuring equal access to airtime for all candidates, the presentation of a variety of viewpoints and the avoidance of bias.

The objective of these responsibilities is to ensure that voters receive the complete and unbiased information they need to make an informed electoral decision.

The problem of the public media’s participation in the broadly understood electoral campaign is treated as one of the necessary elements of neutrality of the public authorities.

The method of operation of the media is a critical point in the preservation of ‘equal opportunities’ by the participants in the electoral process. This is how the role of the public media is ‘linked’ to the principle of equality of elections.

The mass media, which are as independent as possible, especially from the public authorities, are a necessary element of the functioning of a democratic state governed by the rule of law. They influence the shape of democratic processes and are the source of knowledge about the candidates for the authorities. Similarly, the media should undoubtedly reliably present the facts of a given reality and avoid creating it. This is protected by a constitutional body, namely the National Broadcasting Council (KRRiT), which supervises the content that is broadcast. 

Constitutional standard

According to the Constitutional Tribunal, the free, broad flow of views and information from political parties and election committees to citizens (voters) is particularly important, especially during election periods. Free elections and freedom of expression, especially public debate, jointly constitute the foundation of any democratic system, are interrelated and reinforce each other. The Constitutional Tribunal held that freedom of expression, as expressed in Article 54, para, 1 of the Constitution, can apply to both individuals and collective entities, including political parties and election committees. The freedom to express opinions and disseminate information in the context of the practice of democracy is primarily important to political parties and electoral committees, especially during election periods. The citizens, as voters, have the right to receive information, to gain the broadest possible knowledge about the entities and candidates taking part in the elections (judgment of 20 July 2011, case ref. K 9/11).

European Convention on Human Rights

Also the European Court of Human Rights formulates several principles in its case law on reporting. In Manole and Others v. Moldova, the ECtHR noted that ‘in the field of audiovisual broadcasting, the above principles place a duty on the State to ensure, first, that the public has access through television and radio to impartial and accurate information and a range of opinion and comment, reflecting inter alia the diversity of political outlook within the country and, secondly, that journalists and other professionals working in the audiovisual media are not prevented from imparting this information and comment. The choice of the means by which to achieve these aims must vary according to local conditions and, therefore, falls within the State’s margin of appreciation. (…) Where a State does decide to create a public broadcasting system, it follows from the principles outlined above that domestic law and practice must guarantee that the system provides a pluralistic service’ (judgment of 17 September 2009, application no. 13936/02). The obligation arises from the above judgment for the public media authorities to guarantee journalists the ability of do their job without pressure and should refrain from unnecessary interference in the content they broadcast. The authorities of the public media may not pursue a policy intended to present the position of only a certain political, social or religious group on air. 

In its judgments, the ECtHR formulates the obligation to create a public service broadcasting system that guarantees pluralism of views, neutrality of public broadcasters and equal access to the airtime for election candidates. The positive obligation of Member States cannot be limited to the acceptance of appropriate legal regulations, but must also operate and ensure political neutrality in practice, including equal access to airtime (judgment of 19 June 2012 in Communist Party of Russia and Others v. Russia, Application No. 29400/05). As the Court stated, the treatment of the role of the public media should be analysed both from the point of view of negative obligations (i.e. the prohibition of bodies and institutions belonging to the system of public authority to breach the Convention – which can include the public media if they are subject to political control by the state) and positive obligations (i.e. the requirement to ensure that the media – even if they are treated as non-state institutions – comply with the obligations required to maintain the integrity of elections).

It is also worth highlighting a number of soft duties arising from the recommendations of the Committee of Ministers of the Council of Europe to the Member States. Recommendations CM/Rec(2007)15 on measures concerning media coverage of election campaigns indicate that member states should adopt measures whereby the media which are owned by public authorities, when covering election campaigns, should do so in a fair, balanced and impartial manner, without discriminating against or supporting a specific political party or candidate (para. I.4). 

If such media outlets accept paid political advertising in their publications, they should ensure that all political contenders and parties that request the purchase of advertising space are treated in an equal and non-discriminatory manner (point I.4). Member States should adopt measures to ensure that, during election periods, public service broadcasters should act in a particularly fair, balanced and impartial manner in their news and current affairs programmes, including discussion programmes, interviews and debates. No privileged treatment should be given by broadcasters to public authorities during such programmes. This matter should primarily be addressed via appropriate self-regulatory measures. 

In this connection, member states might examine whether, where practicable, the relevant authorities monitoring the coverage of elections should be given the power to intervene in order to remedy possible shortcomings (para. II.2). If member states include in their regulatory frameworks the possibility of making available free airtime to political parties/candidates during the election period to present their electoral content, such airtime and/or equivalent presence should be granted in a fair and non-discriminatory manner, on the basis of transparent and objective criteria (para. II.4).

Statutory obligations 

According to Article 120, para. 1 of the Electoral Code, Telewizja Polska [Polish Television] is obliged to hold a debate between representatives of those electoral committees that have registered their lists of candidates in all constituencies. 

The detailed principles of conducting the debate were specified in the regulation of the National Broadcasting Council of 6 July 2011 (Journal of Laws No. 146, item 878 of 2011). The debate should last at least 45 minutes and be clearly distinguished in the programme, start between 6 p.m. and 10.15 p.m. and be broadcast in the last two weeks before the election day (§ 3 of the regulation). Telewizja Polska should ensure equal conditions for every representative or candidate to participate in the debate by: 

1. enabling them to take part in an equal number of debates;
2. giving them equal time for making statements in the debates;
3. ensuring the same starting time for broadcasting the debates with a tolerance of ±15 minutes;
4. informing the representatives or candidates of the date and topics of the debate, at least 48 hours before the debate is broadcast;
5. holding the debate without an audience in the studio (§ 5 of the regulation);
6. The debate should be broadcast live (§ 8 of the regulation).

The electoral law also guarantees the possibility of broadcasting free of charge and paid programmes prepared by individual committees on public radio and television programmes. The public broadcaster shall disseminate the election committee’s election programmes that have been provided to them no later than 24 hours before the date of their dissemination (Article 118 § 1 of the Electoral Code). The public broadcaster may call upon the election committee to shorten the time of the programmes if it is found that the election programme materials provided by the election committee exceed the time set for these programmes. If the request is unsuccessful, the broadcaster shall stop the broadcast of the election programme at the time when the programme time allocated to the committee ends (Article 118 § 3 of the Electoral Code).

The election committee may disseminate paid election programmes through public and non-public radio and television broadcasters from the date of acceptance by the competent electoral authority of the notice regarding the establishment of the election committee until the date of the end of the election campaign (Article 119 of the Electoral Code). Public broadcasters shall disseminate paid election programmes on the same conditions for all election committees (Article 119 § 2 of the Electoral Code).

Only election committees are responsible for the content disseminated in these broadcasts, which is an important departure from the principle that is generally applicable in Polish media law. The authorities with competence for considering disputes are the ordinary courts. In terms of free broadcasts of the election committees, broadcasters have obligations related to production assistance, as well as technical and operator/editor assistance. The broadcasting of paid election programmes depends on the will of the individual committees and takes place on commercial terms according to the rules laid down by law.

The regulation of 12 July 2011 on airtime and the framework for allocating airtime devoted to the dissemination of free-of-charge election programmes, the procedure for allocating airtime, the scope of registering and the method of preparing and broadcasting election programmes in public radio and television programmes specifies, among other things, the time that public broadcasters (radio and television) are to devote to election programmes. Importantly, the regulation indicates that the airtime of election programmes for the elections to the Polish Sejm in national channels is allocated equally to all the eligible election committees on the basis of information from the State Electoral Commission, and is allocated in the regional programmes to the eligible election committees in proportion to the number of lists of candidates they have registered, on the basis of information from the district electoral commission (§ 40 of the regulation). The order of broadcasting of election programmes on each day is specified by the managers of the editorial offices of the respective national and regional channels by means of a draw of lots conducted in the presence of representatives no later than on the 18th day before the election day (§ 50 of the regulation). The representatives are entitled to complain to the State Election Commission about the arrangements for the allocation of airtime.

In addition to the above programmes, broadcasters may take up other programme activities in accordance with the guiding principle expressed in Article 13, para. 1 of the Broadcasting Act of 29 December 1992 that the broadcaster sets his programme schedule independently and is responsible for its content. According to Article 21 of the Broadcasting Act, the public media are obliged to be politically neutral. Firstly, the neutrality of the public media must mean ensuring that all competing political groupings (candidates) have the right of equal access. This should be guaranteed by law, especially by setting broadcasting times and the freedom to set broadcasting content. There is no obstacle to making this equality proportional, e.g. according to the strength of the respective parties in the outgoing parliament. Secondly, the neutrality of the public media refers to the way in which public events are reported during the broadly understood period of the election campaign. The notion of public events should be given a broad meaning, i.e., it should apply to any information which, directly or indirectly, has or may have an impact on the electorate’s electoral decisions. 

In turn, Article 23 of the Broadcasting Act provides for legal guarantees of access to the public media for the political parties. According to this Article, public broadcasting entities ‘shall create the opportunity for political parties and national trade union organizations and employers’ associations to present their positions on public issues that are broadcast.’

Article 24 of the Broadcasting Act lays down the obligation to ensure the possibility for entities participating in elections to the Sejm, Senate, local government and the European Parliament to disseminate election programmes in public radio and television channels.

Concerns and irregularities

In the context of the appropriation of the public media by the ruling party, it can hardly be expected that they will comply with international, constitutional or statutory obligations. 

Any observer of TVP’s news services has become accustomed to the fact that the principles of fairness are breached, facts are mixed with opinions and airtime is used to discredit and suppress voices of criticism regardless of whether they come from independent media, civil society activists or the opposition. 

In this context, it is difficult to expect that, in the pre-election period, the public media will comply with their statutory obligations of political neutrality, pluralism of views and equal allocation of airtime to the individual political groups. 

A delegation of representatives from the Parliamentary Assembly of the Council of Europe (PACE) specified in their statement of 28 September 2023 after a pre-election visit that there were concerns about the airtime that would be devoted to the individual political forces in the public media. Delegates also noted that the distinction between the presentation of a given candidate as a person currently holding a government position and as a candidate in the elections has become blurred. 

In turn, the Journalists’ Society, which had already customarily analysed the airtime devoted to candidates in the public media news services, acknowledged that the obligation to customarily allocate airtime equally would not be respected.

Worse still, the airtime devoted to opposition candidates is used to criticize and discredit them in the eyes of the public. For these reasons, the Society is focusing in the current campaign on the analysis of TVP’s news material for propaganda tricks and a lack of reliability, rather than solely on airtime. 

The National Broadcasting Council monitors the fulfilment of the media’s obligations in the pre-election period, by using the reports submitted by the broadcasters to monitor the time devoted to individual political forces and can intervene with the broadcaster in the event of a breach of rules arising from the Act or regulations (Article 6, para. 2, item 5 of the Broadcasting Act). 

However, experience shows that, despite complaints from the audience or media experts, the Chair of the National Broadcasting Council is reluctant to intervene if the public media do not comply with the Broadcasting Act. Simultaneously, the Chair of the National Broadcasting Council regularly initiates proceedings against independent broadcasters, imposing severe penalties on them on the basis of Article 53 of the Broadcasting Act. These actions should be construed as being targeted at the public debate and having the intention of inciting a chilling effect. 

Translated by Roman Wojtasz

The article was prepared for the Osiatyński’s Archive and published in Polish in OKO.press.

The activities of the organization are supported with the assistance of the Active Citizens Fund – National Program, which is financed by Iceland, Liechtenstein, and Norway through the Norwegian and EEA Funds.