The Constitutional Tribunal has declared unconstitutional the law expanding the catalogue of so-called hate speech. The Tribunal ruled that its provisions infringed on freedom of speech and stifled public debate. The government now intends to introduce a different mechanism for controlling online content. According to the new draft of the Digital Services Act, requests to block online content would be submitted by “trusted flaggers.” “The perfidy of this solution lies in the fact that the authorities keep their hands clean. These supposedly independent experts will be licensed censors of the government,” says Marcin Warchoł, MP from Law and Justice (PiS).
The ruling of the Constitutional Tribunal followed a decision by President Andrzej Duda, who chose not to sign the law but instead referred it to the Tribunal. After taking office, Karol Nawrocki decided not to withdraw it from review.
“Thanks to this, we avoided overt censorship for ideological reasons,” says Jerzy Kwaśniewski, president of Ordo Iuris. “Today we can feel some relief, as the Tribunal’s judgment should, for years to come, curb lawmakers’ censorial impulses. Unfortunately, it only should, because Donald Tusk’s government refuses to recognize Tribunal rulings. The Minister of Justice and Prosecutor General has already issued guidelines for prosecuting ‘hate speech’ without any statutory basis,” Kwaśniewski warns.
A New Censorship Apparatus
According to sources, the Tribunal’s verdict and the collapse of the “hate speech” censorship path do not mean the government will abandon attempts to impose other forms of media censorship. This concerns the Act on the Provision of Electronic Services, whose draft has just been adopted by the government (reported a few days ago in Gazeta Polska Daily).
“After Karol Nawrocki’s victory and the veto of the gag law on hate speech, Tusk’s government has not ceased in its attempts to muzzle free speech. Tusk knows very well that his power now rests almost solely on lies and manipulations, such as his recent announcement about the alleged end of high prices. He knows that keeping power and winning future elections depends on ensuring his lies are not exposed. The hate speech gag failed, so now he is trying to block the truth with trusted kapos. Tusk is resorting to a tried-and-tested EU mechanism for circumventing the law. It turned out that the European Commission quietly funded NGOs to support the EU climate agenda and attack anyone who criticized it,”
says PiS MP and former Deputy Minister of Justice Marcin Warchoł.
This mechanism grants the head of the Office of Electronic Communications (UKE) the power to block online content at the request of “trusted flaggers,” which may include associations or foundations.
Trusted Flaggers
The solution in the government’s draft law is essentially a copy of EU law regarding “trusted flaggers.” The status of a trusted flagger is granted by the “Digital Services Coordinator” – the head of UKE, a government official – based on an application in which the applicant must specify “the particular areas in which it seeks recognition as a trusted flagger, its expertise and competencies, and provide information confirming that it meets the conditions specified in Article 22(2) of Regulation 2022/2065.” That regulation states, among other things:
The status of ‘trusted flagger’ under this Regulation shall be awarded, upon application by any entity, by the Digital Services Coordinator of the Member State in which the applicant is established, to an applicant that has demonstrated that it meets all of the following conditions:
(a) it has particular expertise and competence for the purposes of detecting, identifying and notifying illegal content;
(b) it is independent from any provider of online platforms;
(c) it carries out its activities for the purposes of submitting notices diligently, accurately and objectively.
This means vague criteria and a privileged position for such an entity, which could be any entity – for example, an association or foundation.
Clean Hands for the Authorities
“The privileged position of these entities is a bad solution,” says Janusz Cieszyński, PiS MP and former Minister of Digitalization, to Gazeta Polska Daily. According to the criteria set out in the government’s draft law and EU Regulation 2022/2065, organizations such as Akcja Demokracja or the Basta Foundation could become trusted flaggers. The latter, for instance, repeatedly challenged the actions of the former head of the National Broadcasting Council (KRRiT), reporting on his ‘years-long inaction’ in response to Basta’s requests for proceedings against broadcasters disseminating homophobic and transphobic content. Between 2022 and 2025, the Foundation submitted 71 requests to KRRiT – none were processed, and administrative courts repeatedly ruled gross inaction, imposing a total of 135,000 PLN in fines and awarding Basta Foundation 52,500 PLN in compensation” (quote from the foundation’s website).
If such a foundation were to gain the status of a trusted flagger, under the proposed law, it could submit requests to the head of UKE for blocking online content. The content would be blocked first, with appeals to court allowed only afterwards.
“In such cases, courts can take years to act, while information is crucial precisely at the moment of publication, not months or years later,” stresses Jolanta Hajdasz, president of the Association of Polish Journalists (SDP).
“The perfidy of this solution lies in the fact that the authorities keep their hands clean. We are not censoring; supposedly independent NGOs are uncovering fraud and manipulations. But the fact that these supposedly independent experts will be licensed censors of the government is something ordinary citizens won’t realize. If we agree to this solution, the dystopia described in Orwell’s 1984 will soon become reality: ‘There was of course no way of knowing whether you were being watched at any given moment (…) You had to live – did live, from habit that became instinct — in the assumption that every sound you made was overheard, and, except in darkness, every movement scrutinized.’” – this is how Marcin Warchoł assesses the censorial role of “trusted flaggers.”