Wolność słowa w kontekście zniesławienia i zniewagi. Rozważania o potrzebie kryminalizacji tych zachowań
Freedom of Speech in the Context of Defamation and Insult. Reflections on the Need for Criminalization of These Behaviors

Summary/Abstract: Freedom of speech, which is a fundamental value and the foundation of a democratic state of law, should lead the way in criminalising behaviour related to its violation. The purpose of this article is to contrast freedom of speech with the crime of defamation and insult. Polish criminal law penalises the inappropriate use of words, i.e. behaviour consisting in slandering a person, group of people, institutions, legal persons or organisational units without legal personality, which may lead to their humiliation in public opinion or exposure to loss of trust necessary for a given position, profession or type of activity, as well as behaviour consisting in insulting another person in his presence or even in his absence, but publicly or with the intention that the insult reaches that person. Both freedom of speech, which guarantees the flow of information and opinions in society, is a basic constitutional good, as well as personal dignity and honour, which ensures respect for the subject. Putting these values together, it is difficult to give a clear answer which of these goods should be more important. Undoubtedly, in the event of committing acts currently criminalised in the form of committing the crime of defamation or insult, the injured party has the right to demand compensation, but the question is whether we must subject it to the regime of criminal liability, which provides for even imprisonment for their commission, and also affects the future of the perpetrator by leaving a trace in the National Criminal Register. It should be remembered that the basic principle of criminal law is the principle of ultima ratio, which states that criminal law should be applied as a last resort when there are no other means. However, in the case of defamation and insult, which involve the criminalisation of speech, it would be worth considering transferring these cases to civil courts. All the more so because currently the initiation of criminal proceedings regarding these acts depends on the activity of the injured party, as their prosecution takes place in private proceedings. The conclusion drawn from these considerations is the need to transfer claims for infringement of personal rights through defamation and insult to civil courts, which would involve changing the regulations to introduce a separate simplified procedure in cases of infringement of personal rights, or enabling the submission of the so-called “blind lawsuits”. Another conclusion drawn from the work is the complete decriminalisation of insult and the transfer of claims only to civil proceedings, while in the case of defamation, leaving it in the Penal Code. The text uses a dogmatic-legal method– it was used to present the norms of regulations in the field of defamation and insult and freedom of speech, and the theoretical-legal method was used to present scientific positions in the field of the phenomenon under study.

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