The following discussion is an archived record of a request for comment. Please do not modify it. No further edits should be made to this discussion. A summary of the conclusions reached follows.

Should the following material be included in the article? (t · c) buidhe 23:40, 2 January 2021 (UTC)[reply]

Legal analysis[edit]

The Polish government's rationale for the law was that it was similar to laws against Holocaust denial in many Western European countries. Law scholars, however, have rejected this comparison, noting that the Polish law, unlike Holocaust denial laws, is intended to protect national honor. They state that the law is more closely related to Turkey's Article 301, which has been used to prosecute Turkish citizens who acknowledge the Armenian Genocide.^[1][2][3]

In The Indian Yearbook of Comparative Law, Indian scholar Kanika Gauba wrote that, whereas Holocaust legislation in other countries enacts a duty to remember by means of criminalizing Holocaust denial, the Polish bill enacts a duty to forget by instituting "collective amnesia" on the complicity of part of the Polish population in the Holocaust.^[4] Polish law scholars Aleksandra Gliszczyńska-Grabias, Grażyna Baranowska, and Anna Wójcik state that with the revised version of the law, "the risk of violations of individual rights and freedoms remains high".^[5]

Polish legal scholar Patrycja Grzebyk [pl] writes that "A scientist who would like to investigate crimes committed by Polish citizens or the scale of Polish collaboration risks the loss of his time, money and reputation in lengthy proceedings against her/him commenced by someone who feels insulted." Even the revised version of the law is inconsistent with international law and human rights standards, as it "limit[s] freedom of speech and scientific activity in a disproportional way and entitle[s] NGOs to bring a lawsuit on behalf of the Polish state or nation".^[6] Uladzislau Belavusau writes that, despite repeal of criminal sanctions, "the fears that the 2018 Law may negatively impact on freedom of expression about Polish history have solid foundations... Potentially anybody who expresses views that are counter to the official version of history recognised by the Polish State could fall under its scope."^[2]

American jurist Alexander Tsesis states that the law, even its revised form, "restricts the acquisition, expression, and dissemination of knowledge" and "its ambiguity makes it uncertain who will be punished and for what communications", leading to a chilling effect on "satire, political commentary, historical analysis, and eyewitness testimony". He concludes that "Poland’s effort to control the public spread of information is likely to lead to misleading conclusions that downplay victims’ sufferings and incite hate propaganda."^[7]

Polish law scholar Tomasz Tadeusz Koncewicz [pl] states that "The new law politicizes historical discussion and instrumentalizes law to achieve the desired reading of history and the past." The law "is the most recent proof that in Poland the past continues to be seen as a collection of indisputable truths, not open to divergent interpretations and historical debate".^[8][9] Constitutional law scholar Wojciech Sadurski states that "[t]he chilling effect of such penal and civil sanctions upon scholarly or journalistic debates regarding the darker sides of Polish history is obvious" and that the law "concerns not so much statements of fact, but rather an opinion: an opinion about (the alleged) responsibility of, say, passive onlookers. To punish for an opinion is an anathema to any system of freedom of expression."^[10]

Compatibility with international law[edit]

According to Polish scholar of constitutional law Piotr Mikuli [pl], the amendment appears to contradict provisions of the Polish constitution including: "Art. 2 from which the so-called principle of decent legislation may be derived, Art. 42 para. 1 expressing the rule nullum crimen sine lege and Art. 54 para. 1 on the freedom to express opinions."^[11] He also expressed the opinion that it did not meet the requirement of being necessary in a democratic society in order to allow a restriction in freedom of speech per Article 10 of the European Convention on Human Rights.^[11] Other law scholars have also questioned the compatibility of the law with international human rights standards, especially the European Convention on Human Rights.^[5][1][6]

Survey[edit]

• Yes The material is well sourced, to peer-reviewed journals, and provides information on how law scholars have analyzed the law, and what they think about it. The above are quite short summaries, mostly of academic articles or other peer-reviewed works whose subject is the law. (t · c) buidhe 23:40, 2 January 2021 (UTC)[reply]
• No - (my rationale to follow soon) - GizzyCatBella🍁 00:47, 3 January 2021 (UTC)[reply]
• No Comment The problem is that this throws together a bunch of additions that are probably non-controversial with a bunch which are, basically trying to force an up/down vote on the entirety. Additionally some of this stuff ALREADY IS IN the article, just paraphrased rather than using long quotes (which is what we're suppose to do). It would make more sense to ask for these additions individually rather than obscuring the proposed inclusion of controversial text by mixing it up with not so controversial text. Unless this is split up, this is going to be a strong No for me. Volunteer Marek 01:46, 3 January 2021 (UTC)[reply]

  Basically all of it was deleted from the article by you, except one sentence from Tsesis. (t · c) buidhe 02:03, 3 January 2021 (UTC)[reply]

  Can you split up the RfC into smaller parts? Like I said, putting all this controversial and less controversial content together forces a yes/no vote on a whole thing, which isn’t optimal? Volunteer Marek 06:43, 3 January 2021 (UTC)[reply]

  What content here is "controversial"? If some of it is not disputed, it can be added to the article immediately, and the RfC can focus only on the content that is disputed. However, as I said above essentially all of it was removed by you. (t · c) buidhe 07:34, 3 January 2021 (UTC)[reply]

  For example, as has been pointed out, the text cited to Gauba above [1]. "Indian Yearbook of Comparative Law" used to sources something about... Polish law. Unsurprisingly, if we check the source it barely mentions this amendment only in passing. This is clearly UNDUE.

  We can discuss other "controversial" parts if you split this RfC up rather than ask editors to vote on an entire big chunk of text which mixes up more or less controversial cases. Volunteer Marek 09:58, 3 January 2021 (UTC)[reply]

  Gauba's article is a comparison of memory laws in different countries. This is an example of a memory law. Wikipedia policies and guidelines recommend giving context to the reader, which includes relevant comparisons with other, related laws passed in other countries. However, I wouldn't strongly object to dropping Gauba, as long as the rest of the content was preserved. You still haven't given any valid reason for objecting to it. (t · c) buidhe 10:45, 3 January 2021 (UTC)[reply]

  I *just* gave a valid reason for objecting to it. The subject of this article is barely mentioned in an offhand comment in a source which isn’t even about the subject. Volunteer Marek 19:13, 3 January 2021 (UTC)[reply]

  I'm referring to the rest of the content. However, Gauba does devote multiple paragraphs to discussing the Polish law, which is not an "offhand comment". (t · c) buidhe 21:18, 3 January 2021 (UTC)[reply]

  "Gauba does devote multiple paragraphs to discussing the Polish law" <-- this claim is simply FALSE. There is one paragraph that mentions it and a couple footnotes. That's one paragraph out of 19 pages which discuss something else entirely. Volunteer Marek 07:36, 6 January 2021 (UTC)[reply]

• Yes, with the exception of the mentioned cite of Gouba, which can be discussed separately. Lembit Staan (talk) 20:56, 3 January 2021 (UTC)[reply]
• No I doubt for two reasons. First, the extensive and significant criticism and discussion of the Polish law are already included on the page. This addition is over the top. Secondly, speaking on the essence of this, this Polish law "penalizes public speech which attributes responsibility for the Holocaust to Poland or the Polish nation" as this page say. No doubts, there were many Nazi collaborators in Poland, just as in other countries. However, accusing whole state of Poland or the entire "Polish nation" is a different thing. Especially when the Polish government was in exile and published The Mass Extermination of Jews in German Occupied Poland. Yes, the entire state of Turkey is guilty of the Armenian genocide (and of denying the Armenian genocide). But one can not accuse whole Poland or the entire Polish nation of the Holocaust. My very best wishes (talk) 00:14, 4 January 2021 (UTC)[reply]

  "entire state of Turkey is guilty of the Armenian genocide" Actually, Turkey did not exist at the time. [2]

  If there are any legal analyses that are more favorable to the law, they should also be added. I did not find any searching Google Scholar in English. But totally ignoring the academic commentary is not a suitable position. According to these commentators, chilling effect is also a free speech issue. There's no mention of it in the current version of the article. (t · c) buidhe 01:16, 4 January 2021 (UTC)[reply]

  I understand that the law has been already amended. So what is the point of discussing legality of something that no longer important/exist? I guess everyone agree this is bad law, but the criticism is already included on the page and included a lot. Saying that, some parts of the text (which relate to criticism of the revised version) could be included. My very best wishes (talk) 06:00, 4 January 2021 (UTC)[reply]

  My very best wishes, Actually, if you look at the text, most of these academic articles were written after the amendment of the law and refer to the version post-changes. They discuss various aspects that are not currently in the article, not only chilling effect but also the compatibility with European Convention on Human Rights.

  It's true that according to some interpretations, prosecutions are not likely to succeed (paper by Gliszczyńska-Grabias, not cited above), however, the concern most commonly expressed is that there is a "chilling effect" on legitimate speech, because of the possibility of legal proceedings and potentially unlimited civil damages (there is no cap in the law).

  Gliszczyńska-Grabias states that "The ECtHR maintains a very strict stance on the meaning of such [chilling] effect and holds that it may occur not only when criminal law sanctions are applied or at risk of being applied, but also when the threat comes from civil law sanctions. The mere fact that a state abandons criminal sanctions for speech does not automatically mean a lesser restriction on freedom of expression." (t · c) buidhe 06:32, 4 January 2021 (UTC)[reply]

  I agree that some of this can be included, however all of that, combined with current content of the page, creates an impression of the same thing repeated a thousand times, at least for a casual reader as myself. My very best wishes (talk) 15:49, 4 January 2021 (UTC)[reply]

  Question. Was anyone ever convicted or sanctioned based on this law? If no, then all of that is basically a rhetorical propaganda BS, just a reason to trade accusations, indignation, etc. For comparison, there are some really ridiculous laws in Russia, and some people were actually convicted just for reposting something on Facebook, etc. My very best wishes (talk) 04:25, 5 January 2021 (UTC)[reply]

  There have been court cases based on the law that attracted media attention, but so far AFAIK all have been unsuccessful. This part of the article was deleted by VM.

  We should go on what reliable sources say, and reliable sources state that the law has the potential to and / or actually discourages legitimate free expression. (t · c) buidhe 06:01, 5 January 2021 (UTC)[reply]

  Yes, certainly. It does discourage legitimate free expression. But the page already tells about this many times, and in very strong expressions. "American Historical Association released a statement calling the law "a threat both to historians’ freedom of speech and to the future of historical scholarship", and so on My very best wishes (talk) 21:01, 8 January 2021 (UTC)[reply]

  @My very best wishes: What content would you like to see there instead? François Robere (talk) 11:34, 9 January 2021 (UTC)[reply]

  A lot was published and a lot of materials are redundant. My personal choice would be to include the "Compatibility with international law" (as suggested above, but not as a separate subsection), and exclude from current version of "Reactions" a short paragraph starting from "Prof. Stanisław Krajewski..." (redundant) and a single phrase starting from "The Polish Ombudsman..." (internet searches are hardly significant). My very best wishes (talk) 17:04, 11 January 2021 (UTC)[reply]

  If a book is popular and gets lots of favorable reviews, do we remove some of them because the article already cites lots of other favorable reviews? I would say, in general, no. As for Polish concentration camps, the whole purpose of this law was to reduce this misnomer, so I think it's significant that it had the opposite effect. Same with the reaction of Polish Jewish community. (t · c) buidhe 17:42, 11 January 2021 (UTC)[reply]

  Oh yes, I strongly agree that the law is absolutely ridiculous. The fact that Polish governments did not completely trash it yet serves only to discredit Poland. Welcome to improve the page. My very best wishes (talk) 22:24, 11 January 2021 (UTC)[reply]

  These seem DUE as "community reactions", but I agree they could be trimmed. Is this better? François Robere (talk) 12:11, 12 January 2021 (UTC)[reply]

• Yes. It's important and well sourced, and the OP has done well to include the relevant quotes. I'd include all of it under a single section, though. François Robere (talk) 11:58, 4 January 2021 (UTC)[reply]
• Comment - MVBW's comment brings up another problem with this proposed material. Most of the "analysis" is of the law (an amendment) before it was amended (yes, an amendment to an amendment). It refers to what the original proposal was not the law that is actually in place. But the proposed text makes hardly (any?) mention of that and in doing so misleads the reader. In fact, overall one problem with this article as is, is that the later changes to the law are barely acknowledged. Basically, a chunk of this stuff is just "outdated WP:RECENTISM". It might've been relevant when the amendment was first proposed, but not really any more. Volunteer Marek 21:38, 4 January 2021 (UTC)[reply]

  Nope, all of these except Mikuli and Koncewicz were written after and refer to the revised/current version of the act. Koncewicz' comments were referred to by a later source written after the changes, indicating they are still relevant. (t · c) buidhe 01:19, 5 January 2021 (UTC)[reply]

• Mhmhm. I am actually favoring inclusion of this, but my concern is WP:POV. This section presents critique of this law. Do we have a corresponding section from its supporters? If not, we risk being biased (and this could merit tagging the section with a template until the corresponding view "from the other side" is added. --_{Piotr Konieczny aka Prokonsul Piotrus| reply here} 06:06, 5 January 2021 (UTC)[reply]

  Piotrus, Thanks for your comment. If there are any legal analyses that are more favorable to the law, as I stated above, I support their inclusion. However, I did not find any searching Google Scholar in English. Also, if most of the reception from legal analysts is negative we should portray that accurately rather than stray into WP:FALSEBALANCE. (t · c) buidhe 06:22, 5 January 2021 (UTC)[reply]

  There is likely something in Polish. Maybe someone should contact the IPN and ask them to supply some sources? --_{Piotr Konieczny aka Prokonsul Piotrus| reply here} 09:09, 5 January 2021 (UTC)[reply]

• Piotrus, the problem here is scrupulously cherry-picked content out of those studies; read this [3] complete source, for example, and justify why that particular text Buidhe wrote was picked out of the piece that does not summarize the original at all. I don't have time now to go deeper into it, but I'll try to explain later why I believe this should be discarded all together. - GizzyCatBella🍁 06:54, 5 January 2021 (UTC)[reply]

  This source is a conference proceeding, many of the chapters are about different laws in different countries. I cite from one chapter in it that focuses on the Polish law and written by notable constitutionalist Alexander Tsesis. If GCB thinks that there is some other content from the source that should be added, they should state what it is. (t · c) buidhe 07:59, 5 January 2021 (UTC)[reply]

  Tsesis is actually already in the article. And you still haven't provided any info on Mikuli, despite being asked for it at least twice. Volunteer Marek 07:32, 6 January 2021 (UTC)[reply]

  Your summary does not accurately represent what he actually wrote. (t · c) buidhe 08:30, 6 January 2021 (UTC)[reply]

  It does. It just avoids long block quotes. Volunteer Marek 18:29, 11 January 2021 (UTC)[reply]

  I've looked at the Mikuli citation. It directs to "DPCE Online", which according to the website is the digital form of a publication that's been around since 1999.[4] The editorial team includes Giuseppe Franco Ferrari, Tommaso Edoardo Frosini and Aldo Ligustro, a scientific advisory board, and many editorial boards at different universities.[5] Overall, looks legit. François Robere (talk) 10:49, 6 January 2021 (UTC)[reply]

  Ok, thanks, that's good enough for me. We can put Mikuli back in. I'm still opposed to including ALL the text as one big chunk because it does mix up good with the bad. Volunteer Marek 18:30, 11 January 2021 (UTC)[reply]

  Which parts do you consider "the bad"? François Robere (talk) 11:54, 12 January 2021 (UTC)[reply]

  Already enumerated and explain this but I'll do it again.

  • The comparisons to the Turkish law are cherry picked and a big stretch. Even the cherry picked quotes from the sources barely make a connection. The statement "law scholars have rejected this..." is pure WP:OR. So is "They state..." Was there a survey of "law scholars" (sic)? Is there a meta study of publications in law journals or something? NO. It's just, again, a couple cherry picked quotes which are used to give a false impression.
  • The Indian Yearbook source by Gauba source is likewise stretched - it mentions the amendment very briefly and in passing. There's really not much at all (one sentence) in this entire yearbook about the Amendment, despite Buidhe's factually incorrect claims about "several paragraphs"
  • I'm ambivalent on Grzebyk.
  • The quote provided for Belavusau DOES NOT actually support the text that's given. This appears to be a straight up misrepresentation of that source (either that or the citation is wrong)
  • Tsesis already is included in the article, just paraphrased, rather than in the form of long block quote, which we are supposed to avoid.
  • Koncewicz and Sandurski are probably fine, though it looks like the inline citations are misplaced (for Sandurski)
  • I'm fine with Mikuli.

  So about half of this is fine and the other half is just pretty bad original research that violates policy. This is why I keep saying that it makes no sense to try to get people in this RfC to !vote "on the whole package". That has the effect of slipping in bad material with some good layered on top to obscure it. Volunteer Marek 08:11, 16 January 2021 (UTC)[reply]

• Comment Buidhe has written that "Law scholars" have rejected the comparison with other laws restricting free speech. The scholars don't give citations for this so it is a pure opinion statement that they are the first source of. It should be attributed like other opinion statements. More important is I don't see the value of arguing that one type of law restricting speech is less controversial than another law restricting free speech. Spudlace (talk) 16:06, 15 January 2021 (UTC)[reply]

  Spudlace, Thanks for your comment. It is accurate that multiple law scholars have made this distinction, the sentence is attributed to them ("law scholars"). It would also be possible to spell out their names.

  You also commented, one type of law restricting speech is less controversial than another law restricting free speech There's a great deal of scholarship on free speech and law which specializes in making exactly these distinctions, and also consider that, for instance, that Germany's law against Holocaust denial, unlike this law, has not caused any diplomatic crises. Recently, MELA European Union research project concluded that restrictions on historical speech that exculpate the nation, state, people etc. that passed the law are the most dangerous to free speech.[6] (t · c) buidhe 16:26, 15 January 2021 (UTC)[reply]

  This does vary from country to country. In the US it is the consensus view that the content of the speech does not make restricting it less controversial or less of a slippery slope. The blurb for Tsesis' book says "this book challenges US Supreme Court's categorical approach..." - it's not a mainstream view. There will be some diversity of opinion for European and EU law scholars, but this can not be summarized as "law scholars reject". I also second the proposal of other editors that this RfC be split into smaller chunks. Spudlace (talk) 16:38, 15 January 2021 (UTC)[reply]

  Discussions of freedom of speech in Europe are much more likely to reference European Court of Human Rights case law that the US Supreme Court. The ECHR has repeatedly upheld restrictions that would be called "content-based" in US jurisprudence; such restrictions are actually recommended by EU law.[7]

  Furthermore, scholars of memory laws, and more than the two cited here, repeatedly distinguished between different types (see Memory_laws#Types_of_memory_laws). The Polish law does not fall into the same category as laws against Holocaust denial. (t· c) buidhe 17:01, 15 January 2021 (UTC)[reply]

  Oh, well, it is a European law. That makes sense. But, why are you citing a (very) minor American scholar from Loyola for such an important and significant statement? I agree, then, that this guy's opinion on European law is irrelevant. Obviously, we also agree that the scope needs to be narrowed. The United States doesn't have "memory laws" or "state-approved interpretations of historical events" and does not restrict free speech unless it poses a Clear and present danger (as we've all learned in the last few days). I'm sorry, but I can't support this until the language is more polished, and the discussion to get it there would be more productive if it were proposed in multiple shorter proposals. Spudlace (talk) 00:37, 16 January 2021 (UTC)[reply]

• Yes - Well sourced, and explained thoroughly and in a balanced manner by the OP. Mark D Worthen PsyD (talk) [he/his/him] 23:31, 15 January 2021 (UTC)[reply]
• Yes - don’t see a reason not to include it. Trasz (talk) 15:08, 16 January 2021 (UTC)[reply]
• Yes — I see no valid reason to not include it; it can be further improved and copy edited, and we can discuss this, but it is all properly attributed and well-sourced; that we may not like what they say is irrelevant, Wikipedia is about verifiability, not truth, and NPOV means "representing fairly, proportionately, and, as far as possible, without editorial bias, all the significant views that have been published by reliable sources on a topic." Academic sources and peer-reviewed articles are the best sources and are the ones that were relied for this. It does include at least three Polish law scholars; that they are critical, like majority of law scholars, it does not mean we must engage in WP:FALSEBALANCE and see this as inherently POV; if it is indeed overtly negative according to scholarly sources, we must report this and not cherry pick positive comments, if they are not scholarly and do not hold the same weight. I hope that Buidhe come back and that this RfC is formally closed by an admin. Davide King (talk) 10:55, 7 January 2022 (UTC)[reply]
• Yes - the sourcing is good, a cursory check confirms that the the text as being proposed is supported by the cited sources, and the text certainly is relevant to the article. For those !voting no: if the concern is POV, add your own sources - the ones presented here are perfectly valid. The way to go is not to ditch the whole text altogether but to add analyses published in sources of comparable quality that say the opposite. Just post them here, and I will be the first to add them when (I hope) the text becomes part of the article, if of course the sources are good enough. The only thing is: the Tsesis link unfortunately directs to an "access denied" page, so please find another one. Szmenderowiecki (talk) 20:03, 20 January 2022 (UTC)[reply]