EXPERTS POLAND

Poland – Is state censorship of the internet becoming a reality?

Yet other Polish authorities are granted the right to block online contents. The pretext for restricting freedom of speech on the Internet is protection against fraud and the concern about fiscal interests of the state.

The group of authorities holding a right to block websites featuring unwanted content in Poland will soon grow, as the Financial Supervision Authority now seeks to acquire such. The domains which shall be blocked are those of entities suspected of illegal financial activities, such as financial pyramids. The idea appeared in the draft amendment to the act on financial market supervision. Currently, the regulations have already passed the consultation and review process.

Discretionary censorship

According to the draft, the Commission will be able to decide to enter the website on the list of public warnings by way of a resolution, even before submitting a notification to the prosecutor’s office.

‘Internet service providers will have to automatically block access to the website within 48 hours. This carries a great risk of mistakes and arbitrariness. The idea is to make the list of blocked sites publicly available, which means, it would be an element of today’s list of public warnings,’ explains Wojciech Klicki, a lawyer at the Panoptykon foundation.

This does not appeal to the Polish Chamber of Electronic Communications. According to them, granting the Financial Supervision Authority the right to prevent Internet users from accessing a given domain without providing adequate procedural guarantees for the domain owner constitutes ‘a significant interference in the freedom of establishment’.

 ‘The project (…) refers directly to the statutory competences of the now-defunct central office of state censorship in the Polish People’s Republic with headquarters in Warsaw at ul. Mysia 5,’ the Association of Stock Market Investors criticizes in its opinion.

It will be possible to appeal against the resolution of the Financial Supervision Authority; however, the appeal will have to be lodged with… the Financial Supervision Authority, which will then have 60 days to consider the appeal. Panoptykon urges the Ministry of Finance to change the regulations to the effect that while the Commission will retain the right to enter the domain on the list, the website will only be blocked with the consent of the court. Separating these two stages is a better guarantee of protecting freedom of speech on the Internet.

And new competences, too

The Ministry of Infrastructure is currently working on amendments to the Polish transport act (the so-called lex Uber). The Ministry wants all active transportation providers and intermediaries to apply for a license. The next stage shall be to enable financial penalties on entities who will not meet this obligation – an amendment which is supposed to and will hit Uber. However, yet another controversial solution is planned: granting the Road Transport Inspectorate a new competence, which in case of an intermediary operating without the required license allows the Inspectorate to submit an application to the President of the Office of Electronic Communications for “blocking computer programs, telephone numbers, mobile applications, teleinformation platforms or other means of communication intended for operation of transportation intermediaries.”

There will be no form of appeal or a review provided by law. According to Panoptykon, this is the most obscure and absurd regulation of the ones recently disclosed.

The right to block contents online may also be soon obtained by the Office for Competition and Consumer Protection. According to the regulation adopted by the European Parliament, authorities will have the right to order the removal or modification of digital content, if there are no other ways to combat illegal practices used by the providers online. What is meant here are, for example, companies pretending to be online stores and duping customers into buying items which are billed but never shipped.

Officials with big guns

In 2016, the law on anti-terrorist activities was adopted and for the first time the possibility of blocking content on the Internet was introduced into the Polish legal system. The introduction of a new solution was justified by the necessity to adjust the security measures in the age of terrorism. In this case, blocking takes place at the request of the head of the Internal Security Agency, but after obtaining the consent of the court.

Unfortunately, we do not know how this law works in practice. We are unable to find out which pages have been blocked. What is more, we cannot even find out if such a measure has ever been implemented. The “ePaństwo” foundation applied to the Internal Security Agency for data on applications for content blocking submitted to the court and has not heard back.

The right to block access to websites is currently also held by the Minister of Finance. In accordance with the amendments in the gambling act that have been in force since March this year, the Ministry keeps a Registry for the Offering of Gambling Games Contrary to the Gambling Act. The entry of a given Internet domain into this Registry is tantamount to the obligation to block access to its contents by the telecommunications undertaking. What is important, the consent to blocking is not issued – as it is in case of the anti-terrorist act – by the court.

It’s the official who decides.

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