- Business in Poland -
Defamatory allegation – how does it differ from defamation in Poland and how can you enforce your rights?
A defamatory allegation is the attribution to a person, company, institution or group of certain characteristics, conduct or actions that may lower them in public opinion or expose them to the loss of trust necessary to practise a profession, run a business or perform a function. Under the Polish Criminal Code, this conduct is classified as defamation, a criminal offence under Article 212 of the Criminal Code [1].
In practice, the Polish terms “pomówienie” and “zniesławienie” are often used interchangeably. The difference is mainly linguistic. “Pomówienie” describes the perpetrator’s conduct, meaning the making of a specific allegation. “Zniesławienie” is the name of the offence that may arise as a result of such an allegation. This is why the phrase “pomówienie kk” usually refers to Article 212 of the Polish Criminal Code.
Defamatory allegation vs defamation - the key difference
The phrase “defamatory allegation vs defamation” requires clarification. These are not two separate types of prohibited acts. In Polish criminal law, defamation consists in alleging that another person, a group of persons, an institution, a legal person or an organisational unit without legal personality has engaged in conduct or has characteristics that may lower them in public opinion or expose them to the loss of trust necessary for a given position, profession or type of activity [1].
A defamatory allegation may concern, among other things, alleged dishonesty in business, breaches of law, employee misconduct, lack of competence, corruption, insolvency or actions contrary to ethical standards. In a business context, the consequences can be serious: loss of contracts, customer attrition, weakened negotiating position, recruitment difficulties or the risk of a media crisis.
In reputation-related cases, what matters is not only the content of the statement itself, but also its context, reach, form, the status of the persons involved in the dispute and whether the recipient could identify the person or entity being defamed. Closed correspondence is assessed differently from a social media post, a press statement, a notice to business partners or an anonymous report circulated to company bodies.
When can a defamatory allegation constitute an offence under Article 212 of the Criminal Code?
Criminal liability for a defamatory allegation requires proof that the statement concerned conduct or characteristics capable of being assessed as true or false. A harsh assessment, criticism or opinion alone is not always sufficient. However, the boundary can be fluid, especially where an opinion contains an implied factual allegation, such as a suggestion that someone committed a crime or abused their position.
Article 212 of the Criminal Code also covers defamation committed through means of mass communication. In practice, this includes the press, online portals, social media platforms, video materials, podcasts and mass-distributed newsletters. This method of action increases the risk of liability because it expands the audience and may intensify reputational harm.
The penalty for defamation depends on the type of offence. The basic form of defamation under Article 212 § 1 of the Criminal Code is punishable by a fine or restriction of liberty. If the perpetrator commits the act through means of mass communication, Article 212 § 2 of the Criminal Code provides for a fine, restriction of liberty or imprisonment for up to one year [1]. The court may also order a compensatory payment to the injured party, the Polish Red Cross or another social purpose indicated by the injured party.
Three statutory exceptions to the punishability of defamation
Not every dissemination of an allegation leads to criminal liability. The Polish Criminal Code provides for exceptions that are particularly relevant in journalistic, compliance, whistleblowing and corporate dispute cases. In simplified terms, these are three situations:
- No offence under Article 212 § 1 of the Criminal Code is committed if a non-public allegation is true - Article 213 § 1 of the Criminal Code [1].
- No offence is committed by a person who publicly raises or disseminates a true allegation concerning the conduct of a person performing a public function - Article 213 § 2 point 1 of the Criminal Code [1].
- No offence is committed by a person who publicly raises or disseminates a true allegation serving to defend a socially justified interest - Article 213 § 2 point 2 of the Criminal Code [1].
These exceptions should not be treated as automatic protection against liability. In cases concerning private or family life, proof of truth may be taken only if the allegation is intended to prevent danger to human life or health or the demoralisation of a minor [1]. The assessment always depends on the specific facts of the case.
Defamatory allegation, insult and infringement of personal rights
A defamatory allegation should be distinguished from insult under Article 216 of the Criminal Code. Insult consists in an offensive form of statement, gesture or conduct that violates the dignity of the addressee. Defamation focuses on an allegation that may lower someone in public opinion or deprive them of trust. However, a single statement may combine both elements, for example by containing both an insult and a false allegation of misconduct.
Regardless of the criminal-law route, the injured party may also rely on civil-law protection. Good name, reputation, honour, privacy, image and confidentiality of correspondence are protected under Articles 23 and 24 of the Polish Civil Code [2]. In the case of legal persons, protection of personal rights follows from Article 43 of the Civil Code [2]. In business cases, the reputation of the entrepreneur and the trust necessary to conduct business are particularly important.
More information on practical instruments for reputation protection, corrections, media infringements and disputes concerning public statements is available in the description of the personal rights and media law practice. A broader discussion of the relationship between defamation, defamatory allegations and insult is also available in the article defamation, defamatory allegation and insult.
How to enforce your rights in a defamation case
The first step should be a swift risk assessment and preservation of evidence. In online defamation cases, time matters because content may be deleted, edited or moved. It is worth preserving URLs, publication dates, screenshots, author details, comments, publication reach and audience reactions. In serious infringements, a notarial protocol or preservation of the material by a specialised entity may be useful.
Depending on the objective and the scale of the case, possible actions include:
- a demand to remove the content, publish an apology or cease the infringements,
- a request for a press correction if the matter concerns press material and the conditions under the Polish Press Law are met [3],
- a claim for protection of personal rights, including an apology, an injunction against further infringements, compensation for non-material harm or payment for a social purpose,
- a private indictment for defamation if the conditions under Article 212 of the Criminal Code are met,
- crisis, communication and compliance measures where the allegation concerns an organisation, management board members, employees or business partners.
As a rule, the offence of defamation is prosecuted by private indictment, as follows from Article 212 § 4 of the Criminal Code [1]. This means that the burden of initiating proceedings usually rests with the injured party. In institutional cases, it is necessary to determine who the injured party is, who may act on their behalf and whether the publication targets an individual, a company, a corporate body, a brand or the entire organisation.
What is crucial for companies, management boards and compliance teams
In organisations, defamatory allegations often arise in the context of employee conflicts, shareholder disputes, reports of irregularities, social media posts or journalistic publications. The response should not be limited to an emotional assessment. It is important to establish whether the allegation is specific, whether it can be verified, who is disseminating it, what evidence exists and what the organisation’s interest is.
Not every unfavourable statement requires a lawsuit or indictment. Sometimes a demand to remove the content, a reputation-focused response, a correction, an internal audit, a stakeholder communication or confidential action towards the author of the infringement will be more effective. In other cases, failure to respond may be perceived as confirmation of the allegations and may deepen the crisis.
This material is for information purposes only and does not constitute legal advice. In cases where a defamatory allegation may have criminal, civil, employment or media-related consequences, it is advisable to analyse the content of the statement, the evidence and the publication context. Support in this area is provided by Kopeć & Zaborowski Law Firm.
FAQ - defamatory allegation
Are a defamatory allegation and defamation the same thing?
In practice, often yes. A “defamatory allegation” describes the conduct, meaning the making of a specific allegation, whereas “defamation” is the name of the offence under Article 212 of the Polish Criminal Code.
What is the penalty for defamation in Poland?
Basic defamation is punishable by a fine or restriction of liberty. A defamatory allegation made through means of mass communication may also result in imprisonment for up to one year.
Does a true allegation always exclude liability?
Not always. The Polish Criminal Code provides for specific exceptions, but their application depends, among other things, on whether the allegation was public or non-public, whether it concerned a person performing a public function or whether it served to defend a socially justified interest.
Can a company be injured by defamation?
Yes. Article 212 of the Criminal Code also covers legal persons and organisational units. A company may also seek civil-law protection of its reputation and good name.
Can a social media post constitute defamation?
Yes, if it contains an allegation that may lower the injured party in public opinion or expose them to the loss of trust. Online publication may be classified as action through means of mass communication.
What should you do after discovering a defamatory publication?
You should preserve evidence, identify the author and reach of the publication, assess the impact on reputation and choose the appropriate course of action: civil, criminal, press-related or communication-focused.
Bibliography
- Act of 6 June 1997 - Polish Criminal Code, in particular Articles 212, 213 and 216.
- Act of 23 April 1964 - Polish Civil Code, in particular Articles 23, 24, 43 and 448.
- Act of 26 January 1984 - Polish Press Law, in particular the provisions concerning press corrections.
Author: adw. Maciej Zaborowski, Managing Partner
E-mail: m.zaborowski@kkz.com.pl
