Media Project – December 4, 2002
Polskie Pornografniczna Project by Andy McPike
Lithuanian Porn by Ramunas Zilnys
Introduction
Walking down Marszalkowska Street in downtown Warsaw, the brightly painted "sex shops" are impossible to miss, hawking erotic magazines, videos, and other items. Forbidden under Communist rule, pornography in the media market has been one of the clearest signs of the free market's arrival in Poland, along with flashy cars and neon signs.
Such materials have never been as visible in Poland as in neighboring Hungary and the Czech Republic, or even in Russia, where pornography was technically illegal until 1997 but rarely prosecuted after 1989. Polish law enacted in 1998 and still in effect, stipulates that hard-core magazines must be wrapped in non-transparent plastic and placed on upper shelves of newsstands - where children cannot see them. It is illegal to produce or distribute pornography involving children, animals, or violence.
Sex shops have become a Warsaw feature since the fall of Communism
Poland’s Roman Catholic stance on sexual matters has meant that its mainstream newspapers and broadcasting are far more chaste than it’s neighbors in Germany, where soft porn is standard evening television fare, or in the Czech Republic, where buxom weather girls think nothing of giving the forecast stark naked.
It seemed strange to me therefore, that in neighboring Lithuania, which is also strongly Roman Catholic, pornography laws governing availability, production and import are more restrictive than in Poland. Pornography is much less visible and domestic publishing laws more strict in Lithuania.
This large industry on the margins of legitimate mainstream media can be indicative of a society balances the values of freedom of speech and freedom of choice vs. religious and moral values. What bettor industry to examine to see to what extent mainstream society is willing to restrict some forms of media which are found to be distasteful or immoral thereby inevitably restricting personal choice and freedoms.
Modern Legislative History
1968 - Soviet Penal Code
Poland inherited an obsolete, communist penal code from 1968. Article 173 of this “Soviet legacy” prohibited "distributing printed matter, pictures or other pornographic materials". Still, no definition of 'pornography' was provided in the code. This deficiency allowed for the law to be interpreted depending on the political situation. Polish religious sensibilities, which Soviet oppression had little or no effect upon, meant pornography was rare in Communist times.
Although this law remained a part of the penal code until 1998, in reality pornography became more available soon after Poland regained full independence. In particular sex booths selling hardcore pornographic magazines and videos proliferated along some of Warsaw’s busiest streets in the Nowe Miasto after 1995.
September 1, 1998
The Polish Sejm (the lower chamber of parliament) passed a new penal code which prohibits the public display of material likely to offend but permits in private everything but erotica involving children, animals and violence. Publishers have had to remove nudity from the covers of magazines sold in kiosks and wrap non-transparent foil around books that might be sold openly in other European countries.
As a result, the Polish sex industry lost little time in holding its first legal trade fair in September 1998, attracting businessmen, pornographic film stars, and both male and female participants. Spectators at the Warsaw show were treated to erotic dancing, mock sado-masochistic performances and naked beauty contests for both sexes. Reuters, 25 September 1998)
2000 – Dark Days for Polish Porn
In late 1999 a coalition of right-wing parties including Solidarnosc and Religious parties drafted a law banning the production and distribution of all pornographic materials, the strongest law of its kind in Europe. The measure would prescribe punishments of up to five years for dissemination of hard pornography, defined as the depiction of sex involving children, animals, or violence, and two-year terms for milder forms of pornography.
The bill is read into the upper house (Senate) and passes by a vote of 233 to 156
The ban is subsequently approved by the Sejm, lower chamber of parliament by a margin of 210 – 197.
Facing intense pressure from both sides, President Kwaśniewski vetoed the law on the last possible date, March 27, 2000. Kwaśniewski's veto angered the Sejm's rightist majority and the Polish Episcopate. The co-ruling Solidarity Election Action (AWS) however had little chance of overriding the president's veto in the Sejm, since its coalition partner, the Freedom Union (UW), backs the president's arguments. (The bill's supporters would require a two-thirds majority in the Sejm to overturn the veto.) By vetoing what would have been Europe's toughest anti-pornography law, Poland's ex-communist president also bucked two of the country's most powerful institutions -the Solidarity political bloc and the Catholic Church -- while
threatening his chance for re-election.
Opponents in the Solidarity-controlled parliament are called President Aleksander Kwasniewski the "pornography president" and vowed to use the decision against him in the upcoming fall election. However, presidential elections were subsequently held in November, and President Kwasniewski was re-elected easily, with a sizable majority.
And so the Law passed September 1, 1998 remains in effect. This law stipulates that hard-core magazines must be wrapped in non-transparent plastic and placed on upper shelves of newsstands - where children cannot see them. It is illegal to produce or distribute pornography involving children, animals, or violence. Parliament has left the tricky decision on what exactly constitutes pornography to the courts.
Letter of the Law vs. Practical Application
Distributors, meanwhile, seemed surprisingly unconcerned throughout the dramatic events of early 2000, perhaps because enforcement of existing laws has been lax. According to the Justice Ministry, only five people were prosecuted for distribution of pornography in 1997. In the first eight months of 1998, only two individuals were prosecuted.
"The law is not very effective," said Pawel Siarkiewicz, owner of the International Fun Center, a leading Polish distributor of erotic lingerie, publications, videos, and sex toys. Mr. Siarkiewicz says he has been charged with violating pornography laws nine times, but never sentenced. He also claims his business has grown by 25 percent every year for several years.
If the law had passed it would have indoubtably made porn less visible to most of the public, and that perhaps would have been enough for its backers. There seemed little doubt that the trade would continue to thrive underground. Asked how he would sell X-rated videos if they were outlawed in 2000, one Warsaw sex-shop owner grinned, held up a tape, and placed it under the counter.
"Prices will be higher, but everything will still be available," he says. "It will be just like under the Communists in the past, only now it's the church that is pushing us around."
One exception to prosecutorial laxity is the gay pornography. On the 28th of March 1997, public prosecutor's office in Warsaw, district Zoliborz, prepared an indictment of distributing pornography against Slawek Starosta (the editor of "Nowy Men" ,"Nowy Wamp" and "Super Wamp" magazines), and Jaroslaw Ender (the President of Pink Press publishing house).
"We learned about the indictment from the media" - says Starosta, former gay activist, founder of Lambda, Polish national gay & lesbian organization and the first openly gay public person in the country. " And the prosecutor still has not delivered the indictment to Mr. Ender".
Considering that a general election is to be held in June and the Pope is coming to Poland in two months' time a public attack against homosexuals publishing pornography may make a lot of political capital for right-wing parties with strong links to the Catholic Church. Other facts also point to a political character of the whole matter. Firstly, there are approximately 20 titles of similar character in the country and so far no publisher has been accused of distributing pornography nor any such indictment has been presented to court. Moreover, every new periodical has to be registered by the Register Court which has the right to refuse or withdraw a registration if the content of a magazine violates the law. The three investigated magazines have been registered without any objections. Yet another evidence is the prosecutor's own doubts as to the possibility of winning the case in a court of law expressed in a press interview. Indeed the case was dropped on appeal.
Public Opinion – Divided or Schizophrenic ???
A survey conducted in early 2000 by showed that 45% of Poles wanted President Kwasniewski to sign the bill, while 39% favoured a veto. Other newspaper opinion polls conducted around the same time found voters were evenly divided on the ban.
In one 1997 poll, more than 50 percent of respondents thought pornography producers were not sufficiently prosecuted. Many also feel that such materials are still too readily available. "We have to protect our children and people on the street, who don't want to see pornography in public," says Mikhail Kaminski, a delegate of the right-wing Christian National Union, who supports a complete ban.
However, a polling agency, OBOP, finds that 78% of Poles think adults should have the right to “watch naked girls in film or in pictures”; 56% had no objections to the sale of soft porn. Another telling statistic - between 300,000 to 400,000 hard-core porn magazines are sold a month in Poland, a country of 39 million people. (Reuters, 25 September 1998)
Availability “A First Hand” Impression
As is common throughout Poland, magazine shops such as Empic are used more as a reading room than a store. The 300,000 – 400,000 magazines sold would bely a much larger readership in my opinion. There is no doubt that hardcore pornography is readily available in most major cities. Even John Paul II Street in central Warszawa is not free from Kiosks selling hardcore pornographic magazines and videos.
Public Discourse on the Pornography Issue in Contemporary Polish Society
1. Arguments for Less restrictive Pornography Laws in line with European Rules. Main proponents include Left wing Parties, Judges, Lawyers, Intelligentsia.
- The bill would be difficult to enforce, undermining the state's credibility.
- An effective fight against pornography can be carried out only through proper education, including sex education, and appropriate activities of churches and other institutions
- Such restrictive laws failed to define pornography, handing dangerous discretionary powers to judges and prosecutors, who could apply the law unpredictably, according to their personal views.
- A sweeping ban acts too strongly in limiting freedom of expression and would create a black market for pornography
- "The president vetoed the bill because its enforcement would institute censorship and limit an individual's freedom to make ethical and artistic choices," Barbara Labuda, a presidential adviser on social issues, said. "Pornography is difficult to define and therefore its ban is hard to enforce. It is possible, however, to protect children and those who do not wish to see pornography, which is what the existing law does," she said.
- ." They argue it will limit the discretion of judges and siphon funds from efforts to fight more-serious crime. The definition was included to aid prosecutors, often hindered by the difficulty of determining exactly what is pornographic.
- "No country has successfully specified what pornography is, and that's because it cannot be done," says Edward Wende, a prominent lawyer and Senate member who opposes the ban. "It is better to give a general definition, as the current law does, so that judges have the freedom to decide what is and is not pornographic."
- The law's critics, which include the opposition Democratic Left Alliance, along with most of the Polish intelligentsia, claim a comprehensive ban is unenforceable and would waste resources that could be devoted to combating more serious crimes.
- Poland's deputy minister of justice, Janusz Niemcewicz, declared the ban would lead to "deriding the law and the dignity of the courts."
- A presidency official, Jolanta Szymanek Deresz, said Kwansiewski had made the decision because the law "would be impossible to apply" given the increasing access to the Internet and satellite television.
- Most lawyers, including judges, consider such a ban unrealistic. They are afraid of the difficulty and absurdity of proving that a specific picture or video recording is pornographic, not to mention the expected flood of new cases for the already heavily overburdened courts.
- that there is no proved relation between the accessibility of pornography and the number of rapes (the same amendment increased the punishment for rape with exceptional cruelty), and that the law should not be changed after just two years.
- The existing regulations provide minors with sufficient protection from pornography and people not wishing to have any contact with such materials. Also the present penal code makes it possible to prosecute producers and distributors of hard porn, namely pornography with the participation of children or animals, or involving violence.
- "Legal regulations are just one, and not always the most important, means of shaping reality," the president’s statement said. "The belief that a legal ban will protect the younger generation from being depraved is an illusion. A young person's personality is shaped more by such institutions as the family, school, church, religious organizations, social organizations and the media, than by the penal code. Introducing bans in this area means admitting that those institutions are ineffective."
- The president's representatives, including Barbara Labuda who is responsible for social issues, added that the amendment to the penal code would be a step backward compared to the times when the 1969 code was in force. They also mentioned that people would be deprived of the right to choose what they feel is right for themselves.
- The head of the UW parliamentary caucus, Jerzy Wierchowicz, also defended the president's decision as one that "prevents spoiling the law" by frequent and incoherent changes.
- The president was also praised by the president of the Helsinki Foundation for Human Rights, Marek Nowicki, who said that thanks to the veto, "we haven't gone back to the times of People's Poland, when customs officers rifled through our baggage looking for Playboy."
- Professor Marian Filar from Nicolaus Copernicus University in Torun commented that "by outlawing pornography, we would have considerably moved away from European norms."