By submitting the open letter, the Observatory of Media Freedom in Poland of the Helsinki Foundation for Human Rights wished to express its concern over the imposition of a punitive reprimand on Mr. Jerzy Sosnowski, a journalist for Program 3 of the Polish Radio, on the basis of motions which are not available to the public. It is outrageous that the grounds for punishing journalists in the public media are not publicly known, while the Management of the Polish Radio is attempting to avoid revealing the content of the motions by invoking trade secrets laws.
On July 6, 2010, a punitive reprimand was issued on the basis of the July 18, 2007 motion on competition (no. 79/IV/2007) introducing non-circumvention agreements (signed by the employer and the Polish Radio employees), as well as the May 11, 2010 motion (no. 78/V/2010) of the Management of the Polish Radio on the authorization to distribute information to external parties. The punishment was imposed on the journalist in relation to the article “What happened to our Program 3” published in Newsweek, a weekly news magazine. The journalist, in describing irregularities and disquieting occurrences within the company, allegedly violated the non-circumvention policy. The administration of the Polish Radio asserted that considering that the journalist had not obtained the Management’s permission to cooperate with other media outlets, the publication of a one-off news article is equivalent to “entering into cooperation” with the magazine. Furthermore, it was indicated that the journalist was not authorized to divulge the information cited in the article. Only the Management and the Press Spokesperson of the Polish Radio are empowered to externally represent the Company on matters of employment policy and growth strategy.
In the letter the Helsinki Foundation for Human Rights stated that, in the scope of the Observatory of Media Freedom in Poland, has turned to the Management of the Polish Radio, on the basis of Article 4 (1)(5), as well as Article 10 of the September 6, 2001 Law on Access to Public Information, with a request to make available the content of the motions that served as the basis for the journalist’s punishment. On July 14, 2010, Polish Radio refused our request, responding that the motions contain trade secrets. The practice permitting the penalization of journalists on the basis of trade secrets is alarming in light of the guarantee of the freedom of expression. Public media, on account of their ownership structure as well as the public mission that they fulfill, should conduct an employment policy, which respects freedom of speech and promotes transparency. Considering the refusal to reveal the content of the motions to the Helsinki Foundation, it was not possible to prepare a detailed statement referencing the Polish Radio’s internal regulations on this matter. Thus, out of necessity, the following statement refers to general principles, which, in our opinion, should be executed in the management of employee policy in the public media.
Above all, the Helsinki Foundation for Human Rights seek to recall the international standards (which it has frequently highlighted in the past) concerning employment policy in the public media stemming from the European Convention on Human Rights. In the judgment of the case Wojas-Kaleta v. Poland (complaint no. 20436/02, pronounced 16 July, 2009), the European Court of Human Rights found Poland guilty of violating Article 10 of the Convention. The Court highlighted that the principal task of a journalist is to inform society about significant societal matters. Fulfillment of this mission is especially important in public media. In the assessment of the Court, the obligation of employees to be loyal towards their employers cannot, however, have binding force in relation to journalists, as the essence of the profession is the transmission of information and opinions. Journalists have the right, and even the obligation, to comment on matters relevant to the public, including matters pertaining to labor or media outlets fulfilling their public mission.
In light of the above-mentioned standard, Jerzy Sosnowski had not only the right but also the obligation to inform the public on the situation in Program 3 of the Polish Radio. The information transmitted by the journalist undoubtedly concerns the “public interest”, and has served as the subject of numerous prior publications, commentaries, and even debates preceding the publication of Jerzy Sosnowski’s article. No legal action had been taken in relation to the authors of this material. It would be suitable to mention here, for instance, the discussion between Andrzej Stankiewicz and Wojciech Mann published in Newsweek Magazine under the title “If this continues, I do not see myself in Program 3 [anymore]”. Jerzy Sosnowski, a long-time employee at Program 3, reacting in a manner characteristic of journalists towards perceived irregularities, presented in his article a commentary to previously known facts. In respect to the above, the limitation of the circle of individuals permitted to comment on the situation in the public radio to members of the Management or to the press spokesperson undoubtedly threatens the fundamental standards of the freedom of expression, as it prevents journalists from fulfilling the public mission conferred to them.
The acknowledgement that a one-time press publication could, in this matter, infringe upon the non-circumvention agreement and should be preceded by the assent of the Management contradicts the guarantees of the freedom of speech and suppresses the possibility of expressing critical opinions directed at employers. The requirement of gaining the Management’s assent furthermore causes the possibility of informing public opinion of occurrences relevant to the social interest to become illusionary. An employee can infringe upon a non-circumvention agreement when he or she conducts activity for a competing party, which creates a tangible risk to the employer’s interests. Although Article 101 of the Labor Code does not require this activity to take place on the basis of an employment contract (the criteria is also met by civil-law contracts), it should be assumed that a one-time publication in a weekly press magazine (which it is difficult to recognize in this case as a “competing party” in relation to Program 3) could not tangibly exert a negative influence on the market situation or the financial condition of the Polish Radio.
In light of the jurisprudence of the European Court of Human Rights (the January 28, 2003 judgment in the case of Peck v. Great Britain, complaint no. 44647/98), bodies applying said law should, in every instance, evaluate whether the disclosure of information about a company does, in reality, entail the probability of the occurrence of damage to protected interests, as well as whether an overriding public interest exists. It seems that the Management of the Polish Radio, in imposing the punitive reprimand on the journalist, did not take into account the actual consequences of his publication, especially the possible occurrence of damage.
In conclusion, by filling the open letter, the Helsinki Foundation for Human Rights wished to highlight that the appeal was made in the matter of the employment policy pursued in regard to Jerzy Sosnowski, as well as M. Jethon and A. Gargas (in Telewizja Polska, Joint-Stock Company) on February 26, 2010. In the statement it was indicated the dangers to freedom of speech resulting from the practice of removing from the air or terminating journalists employed in public media. These media outlets should fulfill their public mission through the transmission of varied information and views to society, including views that are controversial, arouse anxiety, or prompt discussion of socially-relevant topics.
As a result of our appeal, the Foundation was informed by the administration of the company that they operate in accordance to standards respecting the protection of the freedom of speech. However, a punitive reprimand and a significant reduction in air-time have since been imposed on Jerzy Sosnowski. A journalist’s earnings- including in this case- are dependent on completingion assignments. Intentional den commissions for programs and content to a journalist deprives him of a part of his earnings, which he was justified in expecting to obtain. Moreover, such practice exerts a negative influence on journalistic independence by encouraging conformity.
In view of this, the Foundation await clear and transparent action from Polskie Radio, S.A. intended to ensure the achievement of the constitutional and statutory aims of public media, in particular with respect to pursuing an employment policy reflecting conscientiousness for media pluralism.
The statement was signed by:
*Translator’s Note: Since its publication in the original Polish, the statement of the Helsinki Foundation for Human Rights has had a sizable impact on the public debate about the events surrounding the reprimand of Sosnowski. Among other media outlets, several leading daily newspapers, including Gazeta Wyborcza and Dziennik, the weekly magazine Wprost, the web portal Onet, and the radio station Tok-FM, have issued coverage and commentary on the issue.
