Like its parent company TVN, TVN24 has been 100% owned by U.S.-based Discovery, Inc. since 2015 via its subsidiary Polish Television Holding BV, which is registered in the Netherlands, an EU member state, which means that it abides by Polish regulations.

In the first half of 2021, Fakty, the evening news program broadcast on the TVN and TVN24 BiS news channels, was the most-watched news program in Poland with 2.76 million viewers on average and an audience share of 21.72 per cent.

This put it slightly ahead of Wiadomości, public television broadcaster TVP’s main evening news program, which had an audience share of 20.46 per cent. TVN24’s news coverage has offered viewers an alternative to that broadcast by TVP, which was taken over by the ruling Law and Justice party shortly after winning the elections in 2015.

TVN’s critical news coverage has prompted pressure from the authorities more than once. In December 2017, Poland’s National Broadcasting Council (KRRiT) announced a 1.5-million-zloty (356,000 euros) fine for TVN over its allegedly unbalanced coverage of protests outside the Polish parliament in December 2016. The fine was rescinded in January 2018, following criticism in Poland and abroad, including a statement by the U.S. Department of State warning that it “appears to undermine media freedom in Poland”.

In a separate incident in November 2018, TVN said it was facing intimidation after Poland’s Internal Security Agency (ABW) entered the home of a TVN cameraman and called him to a hearing, accused of propagating Nazi propaganda in a report he filmed on a Polish neo-Nazi group. The hearing was later cancelled, after a strong reaction from the U.S. ambassador to Poland at the time, Georgette Mosbacher, who, in a letter to Polish Prime Minister Mateusz Morawiecki, expressed her “deep concern” over the government’s treatment of TVN.

This time, the incident concerns the right of TVN – whose license ends in September – to continue broadcasting in Poland, with a draft bill submitted to parliament by PiS lawmakers on July 7 proposing to bar companies which are majority-owned by entities from outside the European Economic Area (EEA) from owning more than a more than 49 per cent stake in Polish media. If adopted, Discovery could be forced to sell 51 per cent of its stakes in TVN to comply with the new regulations.

Like in previous incidents concerning TVN, it has been defended by the U.S. On July 8, the chargé d’affaires at the U.S. embassy in Warsaw, Bix Aliu, tweeted: “TVN has been an essential part of the Polish media landscape for over 20 years. Unfettered press is crucial for democracy.”

Latest step in repolonization

The recent pressure on TVN24 is part of a longer-term current in the PiS-led ruling camp’s approach to the foreign-owned media referred to as “repolonization”, which involves reducing foreign ownership of media companies in Poland (the term has also been used by PiS politicians in relation to banks). This is based on the claim, put forward by some politicians in the ruling camp, that foreign-owned media outlets, especially German-owned ones, are deliberately critical of the current government.

Government representatives had alluded to plans to “repolonize” foreign-owned media in the past, but the subject receded from the agenda as the party focused on winning a series elections between 2018 and 2020, before resurfacing during the presidential election campaign last summer. In an interview with the Polish Press Agency published on July 14, 2020, PiS’s chairman, Jaroslaw Kaczynski, said that “media in Poland should be Polish”.

This attitude underlay the acquisition of one of the country’s largest media companies, Polska Press, from German company Verlagssgruppe Passau by state-controlled oil refiner and petrol retailer PKN Orlen, which has led to a purge of editorial management at regional newspapers it owns this year.

In this context, critics warn that the draft bill on foreign media ownership submitted to parliament this month is the latest step in this process and that TVN will be the next casualty.

Marek Suski, who led the group of PiS lawmakers behind the bill, has presented it as an attempt to defend national interests. “We protect Polish interests, even though we are friends with the United States,” he said this month at a meeting of readers of Gazeta Polska, a right-wing weekly.

However, the draft bill has faced criticism from the economically liberal Agreement party, one of PiS’s two junior coalition partners. Its leader, Jaroslaw Gowin, has indicated that Agreement will not back the draft in its current form. Instead, the party will file an amendment that would limit majority ownership of the media in Poland to entities within the Organization for Economic Cooperation and Development (OECD), which includes the U.S., “so that media operating in Poland cannot fall into the hands of capital from countries that are guided by anti-democratic values,” he said.

Gowin’s stance could force the bill’s authors to rethink its content – not just for the sake of relations with the U.S, but also to preserve the integrity of the PiS-led majority in parliament, which has already been threatened by earlier tensions within the ruling coalition. Speaking on TV Republika, a right-wing television channel, on July 14, Suski himself has indicated that it has made him pessimistic about the draft bill’s future.

This article is part of IPI’s reporting series “Media freedom in Europe in the shadow of Covid”, which comprises news and analysis from IPI’s network of correspondents throughout the EU. Articles do not necessarily reflect the views of IPI or MFRR. This reporting series is supported by funding from the Friedrich Naumann Foundation for Freedom and by the European Commission (DG Connect) as part of the Media Freedom Rapid Response, a Europe-wide mechanism which tracks, monitors and responds to violations of press and media freedom in EU Member States and Candidate Countries.

The MFRR supports legal arguments to this effect made by consortium member ARTICLE 19, which recently submitted an amicus brief to the Warsaw regional court of competition. The court is currently hearing the appeal of the Polish Human Rights Ombudsman against the January decision by Poland’s competition regulator, UOKiK, to approve the purchase.

The MFRR and other international media freedom and civil society groups have previously warned that the deal would hand the Law and Justice (PiS) government greater control over the media landscape ahead of upcoming local elections and lead to a purge of critical journalists and editors akin to the takeover of Telewizja Polska in 2016.

The purchase risks the acceleration of state-led media capture in Poland and echoes developments in Hungary in the mid-2010s, when government-backed oligarchs snapped up the country’s regional newspapers, turning them into party mouthpieces.

While Orlen is nominally a private company, the Polish state is the main stakeholder in the company and holds 32 percent of the voting rights. Orlen has itself stated, in recent occasions, that the Polish state has “de facto control” over the company.

Since finalising the sale, Orlen has broken clear commitments to respect editorial independence and staffing by dismissing or pushing out eight editors-in-chief at Polska Press titles, in contradiction of the court’s interim decision suspending the purchase.

Ahead of the ruling, the MFRR supports the appeal brought by Ombudsman Adam Bodnar and joins ARTICLE 19 stressing that the Regional Court in Warsaw must ensure its decision complies with both EU law on mergers and with Poland’s obligations with regards to European standards on media pluralism.

 

Legal analysis

We believe UOKiK’s failure to examine the extent of the Polish state’s control over Orlen and the clear risks to editorial independence this may pose – in addition its failure to consider the impact the acquisition has on competition and media pluralism – invalidates the entire assessment and constitutes sufficient ground for annulment of its original decision.

Firstly, it is clear that the Polish state wields de facto control over Orlen, with combined voting rights of 32.42%. The company’s CEO  was appointed by the government and has clear political allegiances to PiS party leader Jarosław Kaczyński. This raises serious questions about the future editorial independence of Polska Press and the risk of indirect government censorship.

Given the Polish government’s increasingly alarming record on media freedom and concerns about PiS’s use of Orlen to direct public advertising revenue away from critical outlets and distort the media market, UOKiK had a duty to assess the question of state control. However, its original assessment failed to examine this fundamental issue.

Orlen has already replaced the editors-in-chief of numerous Polska Press titles with journalists coming from the state-controlled broadcaster TVP and other pro-PiS media, in a first move to end criticism and ensure favourable coverage. Orlen’s other investments in the media sector, most prominently the creation of the Sigma BIS advertising agency with the state-owned insurance company PZU, is another sign of coordinated state cooperation and control.

Secondly, under EU law media pluralism is one of the factors that must be considered when assessing a merger. In testing the purchase with regards to the Polish Anti-Monopoly Act, which reflects the same test provided by EU merger rules, UOKiK should therefore have taken into account the risk that the transaction may have a negative impact on media pluralism in Poland. Its failure to do so constitutes sufficient ground for annulment of the decision.

Thirdly, by failing to assess whether the proposed takeover led to an infringement of Article 11(2) of the EU Charter regarding the freedom and pluralism of the media, UOKiK violated Article 4(3) TEU and Poland’s obligation of sincere cooperation with the European Union while carrying out its merger control assessment – another significant violation.

Lastly, UOKiK failed to consider media pluralism under the European Convention of Human Rights. By authorising a merger that would negatively impact media pluralism, or at the very minimum by authorising a merger without duly scrutinising the impact it could have on media pluralism, the state, through UOKiK, infringed its duties under Article 10 of the Convention.

Taken together, the MFRR firmly believe these failures by UOKiK warrant a decision by the court to repeal its original decision approving PKN Orlen’s December 2020 purchase of Polska Press from German company Verlagsgruppe Passau. Doing so would not only represent a victory for the rule of law, but also be an important victory for media freedom, pluralism and independence in Poland.