Measures are being taken in Poland to pass legislation regulating influencer marketing.The first major step in this direction was measures by the Office of Competition and Consumer Protection to address the labeling of advertising content by influencers[1]. The current focus is on counteracting content posted online by trash streamers, leading to a legislative proposal to amend the Criminal Code[2], by inserting art. 225b. This provision will define trash-streaming as dissemination of content that shows the commission of an offence (harmful content) or the staged commission of an offence, portrayed as being real. Content is disseminated through audio/video transmission (such as livestreaming) or by sharing audio/video recordings (for example on-demand streaming) via an IT network, especially the Internet. Harmful content is listed in three groups:
| Pathological | Deliberately committed crimes harmful to life, health, freedom, including sexual freedom, social norms, family, or care, or violent crime, punishable by at least five years’ imprisonment |
| Violence | Acts that violate bodily integrity and are degrading or humiliating treatment of others |
| Animal | Killing or abuse of an animal |
The pathological category covers the main actions of trash streamers[3]. The violence category addresses the increasing amount of content featuring violent and degrading conduct[4]. The animal category is a result of past cases of trash-streaming involving animals[5].
The envisaged penalty for trash-streaming is imprisonment for between six months and eight years. Where actions are aimed at obtaining or are performed when obtaining material or personal gain (viewers’ donations), the sentence can be imprisonment for between one and ten years. It is important for internet users and online commentators (for example those who have commentary channels) to note that persons acting to defend the public interest or deserving consideration personal interest will not be held accountable for trash-streaming, as long as they do not commit the offence of trash-streaming or incite or assist in the commission of such an offence.
The new legislation will apply in particular to trash streamers, persons who post shorts or add commentary on online events, and witnesses to pathological incidents. Thus it is advisable to label trash-streaming content accordingly, to ensure that trash-streaming is not punishable. This can be done by stating this in the content itself, or including a description or additional remarks. It may be useful to consult a professional to determine whether harmful content can be posted lawfully.
Author: Dominik Gabor
Footnotes
[1] The Office of Competition and Consumer Protection, UOKiK President recommendations on how influencers are to label advertising content on social media, Warsaw, 2022.
[2] Motion submitted by MPs for a bill amending the Criminal Code 23.5.2023, docket 3310.
[3] See for example motion submitted by MPs for a bill amending the Criminal Code 23.5.2023, docket 3310, p. 3.
[4] See for example the reportage program: Uwaga! TVN, Juvenile vigilante justice in the town center (UWAGA! TVN), https://www.youtube.com/watch?v=5f9jBP0X1fg&ab_channel=Uwaga%21TVN, accessed: 16.8.2023
[5] See for example WATAHA – Krulestwo, MODEL ANIMAL CARE, https://www.youtube.com/watch?v=yMWWzKquowU&ab_channel=WATAHA-Krulestwo, accessed: 16.8.2023.