President’s veto further delays the implementation of the DSA in Poland

Poland is among the last EU member states to implement the Digital Service Act. After two years of negotiations between the government and civil actors – led by the Panoptykon Foundation, the Polish NGO protecting fundamental rights in the online context – the implementing act was ready. President’s veto means that the process has to be started afresh.

The Digital Services Act (DSA) was adopted by the EU in 2022. It was meant to protect internet users on online platforms, with a particular focus on the largest market players. Yet, the regulation will have its full effect only when all EU member states have implemented and appointed national Digital Services Coordinators. Poland is among the last member states to do so.

17 February 2024 was the deadline for national implementation of the new law. However, Poland’s focus at that time was on the newly formed government, which took office in December 2023 following elections in October that year. The Ministry of Digital Affairs went public with their concept of national implementation of the DSA in January 2024.

From that point, though delayed, the legislative process followed a standard sequence for implementing EU law. Public consultations were organised, the first draft of the law was published, a second round of public consultations was held, another draft law was released.

DSA implementation in Poland month by month

As with other EU regulations, the core elements of the DSA, including the designation of the Digital Services Coordinator, enforcement powers, and cooperation with the European Commission, had to be reflected in national law and were not optional. The DSA itself was not questioned as its implementation was a legal necessity. The controversy emerged when the government decided to go beyond strict DSA implementation and use the same legislative act to introduce additional national rules on content moderation and blocking content deemed illegal.

These supplementary provisions – proposed in subsequent drafts – triggered a backlash: “Polish government wants to censor the internet!” – read the headlines.

Controversies over Polish “gold-plating” of the DSA

The Polish government’s intention in going beyond the strict implementation of the DSA was quite clear. Two years after the regulation came into force, commercial platforms are still full of illegal content – scams, child sexual abuse material (CSAM), AI generated abusive images, and more. You name it. “Why not try to solve this problem too, while we are amending national rules for online platforms?” thought somebody in the Ministry of Digital Affairs. Killing two birds with one stone is tempting, but, this time, it did not go well.

In autumn 2024, the government proposed that decisions made by online platforms on content moderation decisions – namely to block or not to block content – should be reviewed by the President of the Office of Electronic Communications (the OEC – which is an administrative body). The procedure was deemed to be fast, accessible, and easy, yet it lacked the necessary measures to protect free speech.

Panoptykon initiated a nationwide debate on the risk of online censorship, prompting the government to revise its position. Ultimately, a number of safeguards were added to the draft law, significantly reducing the risk to freedom of expression.

These amendments reflected Panoptykon’s key demands, such as:

• the need of judicial oversight of blocking decisions,
• the participation of the author of disputed content in proceedings before the President of the OEC,
• a substantial limitation on the type of cases the President could handle, restricted to clearly defined 27 serious offences.

During the parliamentary proceedings, additional safeguards were introduced to the blocking procedure, further reducing the risk of abuse in ways that could undermine freedom of expression.

New hope for blocked users

Last but not least, our advocacy efforts led the government to include an important mechanism for the swift reinstatement of unjustly blocked content by online platform in the draft implementation law. If the law would have come to force, people whose content was unjustly blocked by platforms would have been able to appeal such baseless blocks to the President of OEC, who in certain situations would have had the power to order the restoration of the removed content.

The initial shape of this provision was not entirely satisfactory, as only a small percentage of users could take advantage of it, leaving unaddressed all cases of posts/accounts taken down by a mistake, as well as disputes between platform’s terms of use and author’s freedom of expression. We persuaded members of the Parliament to introduce an amendment during parliamentary proceedings that broadened the scope of the provision.

As a result, a larger group of users affected by the so‑called private censorship from online platforms would be able to benefit from the reinstatement mechanism. The adoption of this solution could undoubtedly mark a significant breakthrough in safeguarding freedom of expression online for Polish users.

Although it took almost a year, the procedure has become not only safe but even beneficial for internet users fighting for free expression.

Why has the Polish President vetoed it then?

President Karol Nawrocki, who as Head of State has the constitutional power to veto legislation adopted by Parliament, justified his decision by emphasising what he described as the danger of censorship. While vetoing the act, he explicitly stated that the DSA itself was generally a good regulation, arguing instead that the government had unnecessarily “spoiled” its implementation by adding a national procedure he labelled as censorship.

Despite the safeguards introduced during parliamentary work, the President argued that “the freedom of speech will be subject to arbitrary decisions made by a clerk supervised by the Prime Minister”. Nawrocki also opposed the idea of using public money to support trusted flaggers, arguing (wrongly) they will act censors of the “wrongthinking”, rather than recognising them as entities reporting illegal content under the DSA framework.

At the same time, the President emphasised that DSA implementation is urgently needed and suggested that it could be completed in a month or two, a claim widely regarded as unrealistic by many.

The First Lady Marta Nawrocka, whom Panoptykon appealed to prior to the veto also agreed with the need to protect internet users. In her reply, she emphasised the responsibility of the internet platforms for designing our online experience and exposing users to harmful content, including pornography, eating disorders, or suicidal content.

Experts in the field, including Panoptykon, largely agree that the veto lacked substantive justification and, hence, it must have been of a political nature. After the law was fundamentally amended by the Parliament, it no longer posed a threat to freedom of expression. In particular, it did not introduce any mechanism that could be used to silence critical political opinions. On the other hand, the continued lack of DSA implementation means that Polish citizens remain without effective tools to protect themselves against the most harmful practices of large platforms.

Therefore, it is fair to say that the Presidential veto ultimately benefited tech companies, at the expense of Polish citizens.

Outside of the tech-policy bubble, opinions on the President’s veto remain divided. Conservative media continue to discredit the Panoptykon and its allies’ efforts as “trying to introduce internet censorship under the pretext of protecting children”. On the other hand, 58% of respondents in a poll launched by one of the TV stations criticised the President’s veto.

Even though Poland has not yet implemented the DSA, Panoptykon activists are hopeful. People who have never heard of the DSA before, read about it on every major – and minor – media outlet. The narrative on why we need the pro-user internet regulations is stronger than ever before and Panoptykon will definitely not give up on reminding it to the decision makers.

It will continue to remind the need for more accessible, non-judicial procedures that allow users unlawfully blocked by online platforms to effectively defend their rights; for increased funding and staffing of the Digital Services Coordinator (DSC); for public funding of out-of-court dispute settlement mechanisms; and for the establishment of an advisory council that includes representatives of civil society.