Lech Jaworski

Licenses to broadcast radio and TV programmes in the light of constitutional freedoms

The right of every person to obtain information, guaranteed by Article 54 Section 1 of the Constitution of the Republic of Poland, is realized mainly through media. In order to carry out these tasks, the media need to have guaranteed, and not just confirmed by the above mentioned regulation, freedom of speech, but also the freedom to perform activities, through which they will be able to distribute information. Such guarantees can be found in Article 14 of the Constitution, whereas the ban on preventive censorship and press licensing, expressed in Article 54 Section 2 of the Constitution is a detailed guarantee of the freedom to conduct business by the media. This regulation, however, stipulates that an act of parliament may introduce an obligation to obtain a prior license to run a radio or TV station. Administrative decisions in this matter are included mainly in Chapter 5 of the Broadcasting Act, titled "Licences to broadcast programmes", (Art.33-40b). It is also necessary to point to the fact that radio and TV programme broadcast takes place within the frames of running a business activity. However, according to Article 46 Section 1 Point 5 of the Act on the Freedom to Perform a Business Activity, running a business activity in the area of broadcasting radio and TV programmes requires to obtain a license, while the detailed range and conditions of running a business activity subject to licensing are regulated by other acts of parliament. According to Article 22 of the Constitution, “limiting the freedom to run a business activity is only acceptable by means of an act of parliament and only due to an important public interest.”

The importance of the press in a democratic state is beyond doubt. This requires that freedom of press expression be guaranteed. However, this is not an absolute freedom and is subject to restric­tions. In particular, the journalist must remember that “The press is under an obligation to truly present the discussed phenomena” (Article 6 par. 1 of the Press Law). However, understanding this principle too literally may raise reasonable doubts. The result of a journalist’s cognitive conduct – even with the utmost care – may turn out to be untrue. It would therefore be unreasonable to hold a journalist accountable according to an absolute criterion of the veracity of the facts. It is therefore appropriate to consider the regulation referred to here as a directional standard, the performance of which should be assessed particularly carefully in the context of the implementation of the statuto­ry obligations imposed on the press (journalist).

JEL: K15