The following is based on a communication written by the UN Special Rapporteur on Human Rights Defenders and other UN experts to the Government of Poland on 15 February 2022. The communication remained confidential for 60 days before being made public. While thankful to the Government for its response on 11 April 2022, I remain deeply concerned by the multiple litigation proceedings against Atlas of Hate for calling out the de facto discriminatory nature of local government declarations towards LGBT people.
This is a shorter version of the original communication.
Topic: multiple legal cases brought against Atlas of Hate for defending the rights of lesbian, gay, bisexual and transgender (LGBT) individuals.
Atlas of Hate, also known as Atlas nienawiści, is a civil society organisation founded in Poland in 2019. Through the website of the same name, the organisation gathers and disseminates information on resolutions adopted by local governments in Poland that allegedly discriminate on the basis of sexual orientation and gender identity, as well as further attempts to introduce discriminatory resolutions.
We regret that this was the fourth occasion in just over 12 months that we communicated concerns to the Polish Government regarding acts of discrimination against LGBT persons and LGBT human rights defenders in Poland. We thank the Government for the replies received to all three previous communications, POL 6/2021 sent on 18 November 2021, POL 3/2021 sent on 26 February 2021 and POL 1/2020 sent on 20 January 2021, which convey positive messages about the full enjoyment of rights of LGBT people, however we regret that defenders of those rights continue to be targeted, particularly by means of strategic litigation and stigmatising public discourse which significantly impedes their ability to carry out their work.
Atlas of Hate began collecting data on local government resolutions that discriminate against LGBT persons in the summer 2019 and launched a website to showcase the data in November of the same year. The organisation collects data mainly on two types of resolutions, both of which are declaratory in nature: those declaring certain zones “free of LGBT ideology” and those related to the enactment of a “Charter on the Rights of the Family”.
The Charter of the Rights of the Family (or “the Charter”) was drafted and advocated for by Ordo Iuris Institute for Legal Culture (hereafter Ordo Iuris), a foundation based on religious principles, whose declared aim is “to protect the Constitution of Poland”. Ordo Iuris claims that the aim of the Charter is “to promote the constitutional principles of protection of the family, marriage, parenthood and motherhood”, “protection of family life” and “protection of children against demoralization”.
The Charter on the Rights of the Family makes no specific mention of sexual orientation and gender identity, however it was reportedly created as a reaction against an increased interest in supporting the human rights of LGBT persons in Poland, and against two initiatives in particular. Indeed, on 29 March 2019, Ordo Iuris argued that the adoption of the Charter was necessary in order to defend Polish values in the face of “ideological postulates” and “demoralisation” of children caused by Warsaw’s “LGBT+ Declaration”, and to stop the “propaganda campaign” Rainbow Friday. The “LGBT+ Declaration” launched by the mayor of Warsaw in February 2019 outlined ways for the local government to support the rights and wellbeing of the city’s LGBT community, for example by the provision of shelter for LGBT youths and including LGBT experiences in anti-discrimination and sex education curriculums in schools. Rainbow Friday is an annual event launched by a Polish NGO in schools to show support for LGBT youth. Furthermore, a coordinator behind the development of the Charter said in March 2020 that the Charter is a response to “threats” from “LGBT ideology and gender ideology”.
The Charter notably says that organisations which “undermine the constitutional identity of marriage as a relationship between a man and a woman or the autonomy of the family” should be excluded from receiving public funds.1 This may impact the work of LGBT human rights organisations which, among their human rights activities, advocate for the recognition and protection of non-heteronormative families. The Charter on the Rights of the Family was adopted by 40 local governments in total. Six have reportedly since been repealed.
The Atlas of Hate online interactive map monitors local governments that have passed a declaration on either the LGBT free zones or the Charter on the Rights of the Family, or both. Atlas of Hate categorises both declarations as discriminatory on the basis of sexual orientation and gender identity.
Beginning in February 2020, some local governments announced that they would bring legal cases against the authors of Atlas of Hate for alleged defamation, for displaying regions which have enacted the Charter on the Rights of the Family as areas that discriminate on the basis of sexual orientation and gender identity. Atlas of Hate has so far been sued for defamation by seven local governments.
Przysucha county sued Atlas of Hate under articles 23 and 24 (on the protection of personal rights), article 43 (on the protection of a legal person) and article 448 (on the breach of personal good) of the Civil Code in April 2020, followed by Tatra county in November 2020, Tarnów county and Przasnysz county in February 2021, Opoczno county in May 2021, Gromadka commune in June 2021 and Łowicz county in October 2021. A date for the first hearing in each of these cases has reportedly not yet been announced.
Przasnysz county is the only case that has reached the trial stage at the date of the present communication. The final hearing of the first instance took place at the district court in Ostrołęka on 29 December 2021. The case was dismissed, however the plaintiff has announced that it plans to appeal the decision. If Atlas of Hate lose a lawsuit they are to be fined 20,000 złoty (approx. 4,400 EUR), which must be paid to a local social organisation. They must release a statement on the Atlas of Hate website, read out an apology in front of the European Parliament building at the expense of the defendants and issue an apology in the Polish Press Agency at the expense of the defendants. This would be repeated for every lawsuit that they lose.
In the communication we expressed our deep concern with regards to the multiple legal cases against the human rights organization Atlas of Hate, which appears to be targeted for its legitimate defence of the human rights of LGBT persons and exercise of freedom of expression to promote these rights. We are deeply concerned that the Charter on the Rights of the Family may have been enacted in an effort to stymie the further realisation of the rights of LGBT persons in Poland, and defamation legislation misused in an attempt to silence those who collect and share information on the matter.
We are particularly concerned by the legal action against Atlas of Hate as it appears to take place in the context of widespread strategic litigation against public participation (SLAPPs) against defenders of the human rights of LGBT people in Poland. We refer in particular to communications POL 3/2021 and POL 6/2021.
While we thank the Polish Government for its willingness to engage on these issues in the replies received, we are concerned that the threat that SLAPPs pose to legitimate human rights work in Poland is not fully appreciated in the reply. The Government argues in response to POL 6/2021, that “making false accusations doesn’t harm the defendant, but can be costly for the plaintiff.” However, a legal framework that allows for litigation against the legitimate defence of human rights can be harmful in several ways to the defendant, as demonstrated by the number of cases against Atlas of Hate as demonstrated in the present letter, Bart Staszewski in POL 6/2021, and others. The ease with which legal proceedings can be brought against activists, leaves them less time to engage in their rights-based work. The increasing use of the insult and defamation laws appears to be part of a systemic approach in recent years to stifle criticism of the government and create a chilling effect on freedom of expression in Poland.
States’ positive obligation to facilitate the exercise of the rights of freedom of expression, peaceful assembly and association includes, among others, the duty to establish and maintain an enabling environment for civil society to operate freely. As noted in an information note by the former UN Special Rapporteur rights to freedom of peaceful assembly and of association, “SLAPPs use a range of tactics to exhaust resources, campaign capacity and morale”. In this regard, we are concerned that abusive litigation may intimidate others, including journalists, anti-corruption activists, legal experts and minority groups into silence, or facilitate negative impacts on their mental health, or that of the community they defend. Furthermore, regardless of the outcome of the cases, multiple lawsuits against the protection of the rights of certain groups in society may fuel the stigmatising public discourse about that group, leading to further discrimination and possibly violence