Review by Radio-Canada Ombudsman of a complaint that the report by the journalist Alexandra Szacka, broadcast during Téléjournal on February 1 2018 on ICI Radio-Canada Télé, contains factual errors and that the views expressed therein lack balance.

COMPLAINT

On February 6 2018, the Republic of Poland Ambassador to Canada, Mr. Andrzej Kurnicki, complained about a report by the journalist Alexandra Szacka, broadcast on February 1 2018 during Téléjournal on ICI Radio-Canada Télé. The report was about the adoption by the Polish Senate of a law aimed at setting the boundaries of public discourse on the responsibility of the Polish people and its government for crimes committed by Nazi Germany during the Second World War. According to the complainant, the report contained inaccurate information, in particular this sentence:

‘Whoever dares to say that the Poles were complicit in the extermination of the Jews during the Second World War could be jailed for three years. ‘

However, Mr. Kurnicki argues that the law on the Institute of National Remembrance does not go that far. He writes:

‘In fact, the law in question only penalizes those who claim, publicly and contrary to the facts, that the Polish Nation or the Republic of Poland is responsible or co-responsible for Nazi crimes. More specifically, this relates to the assignment of responsibility to the Poles for the establishment or management of Nazi concentration and death camps, set up by the Germans on the territory of occupied Poland. It should be noted that the law does not apply to academics or artists, in the course of their respective work. ’

Mr. Kurnicki adds that the law also does not prevent Holocaust survivors or their families from telling their stories.

Finally, the complainant is dismayed by the selection of the two people interviewed as part of this report, professors Jan Tomasz Gross and Jan Grabowski, who are, he says ‘known for being very critical of the attitudes of Poles in their relations with the Jews during the German occupation’. In his opinion, this does not comply with the principle of balance contained in the Journalistic Standards and Practices (JSPs) of Radio-Canada, according to which ‘when we discuss controversial issues, we ensure that different views are presented in a respectful manner’.

1 http://ici.radio-canada.ca/tele/le-telejournal-22h/2016-2017/segments/reportage/57502/loi-senat-polonais- holocauste-juif-nazi

2 http://www.cbc.radio-canada.ca/fr/rendre-des-comptes-aux-canadiens/lois-et- politiques/programmation/journalistique/

As per the standard procedure, I first asked the Radio-Canada news team to respond to the complainant.

RESPONSE OF THE NEWS TEAM

In its response, Radio-Canada fully defends the content of the report, including the sentence ‘whoever dares to say that the Poles were complicit in the extermination of the Jews during the Second World War could be jailed for three years’. On behalf of the news team, Mr. Ahmed Kouaou wrote on March 5 2018:

‘It is clear that the journalist’s claim is in keeping with the spirit of the law which, in paragraph 1, does in fact note that whoever assigns responsibility for the Holocaust to the Polish Nation is liable to a fine or up to three years’ imprisonment. Consequently, the sentence that you deem problematic is correct, and the fact that it does not include the exception granted to artistic and academic activities, stated in paragraph 3, does not reduce its accuracy. The main scope of this law, as you will agree, is contained in the first paragraph and in a report such as the one to which you refer, which did not claim to discuss this law at length, but rather to present the outline and context, it is normal to be more interested in the rule than the exception. ’

Radio-Canada adds that the exceptions cited by the complainant do not reassure researchers and historians specializing in the Holocaust in Poland such as Jan Grabowski who, in the French magazine L’Express, wrote:

‘The argument that academic research does not fall within the scope of the law is flawed. How do you differentiate between academic research and its popularization – for example, my interview with L’Express? Could it have a deterrent effect on students? Journalists? Teachers who no longer wish to discuss ‘sensitive’ parts of history in their lessons? ’

In its response, Radio-Canada points out that, as Polish President, Andrzej Duda, has himself admitted, the law would benefit from being more specific; for that reason, he has submitted it to the Constitutional Court to ensure that it complies with constitutional provisions concerning freedom of expression.

Finally, on the issue of balanced reporting, Radio-Canada maintains that the two historians who spoke on the program are ‘world renowned for their research’ and that the decision to invite them to speak was an editorial choice made by the news team. Mr. Kouaou points out that they are not the only Polish people featured in the report, which also includes a statement from the Polish president in favour of the new law as follows:

‘There was no participation by Poland or the Polish people as a nation (in the Holocaust). ’

REQUEST FOR REVIEW

The response did not satisfy Mr. Kurnicki who, on March 14 2018, asked the ombudsman to review the case, for three reasons:

‘Firstly, I believe that the failure to include information on the exemption in the law in question for academic researchers and artists is a misrepresentation, even if unintentional, of the content of the law and its scope. Without this important information, there is no significant counterweight to the opinions of the researchers quoted in the report on the supposed desire of the Polish Government to inhibit free and impartial research on the Holocaust and, therefore, listeners cannot freely judge the legislator’s intention.

Secondly, I feel that the statement by Polish President Andrzej Duda quoted in the report are not sufficient to conclude that ‘different views were presented in a respectful manner’, since the President's speech is in fact completely unrelated to the analysis of the law in question.

Thirdly, it is my view that professors Jan Tomasz Gross and Jan Grabowski are known for their criticism of Polish attitudes toward the Jews during the German occupation. I agree with Mr. Ahmed Kouaou’s observation that ‘inviting them to speak was an editorial choice’ made by the CBC. However, I note with regret that this choice did not ensure impartial handling of the subject. ’

REVIEW³

Rules in question

The review of this complaint refers to three principles⁴ contained in the JSPs of Radio-Canada, namely accuracy, balance and impartiality:

‘Accuracy

We search for the truth on all matters of public concern. We make every effort to gather the facts, understand them and explain them clearly to our listeners.

Our production techniques allow us to present information in a clear and accessible manner.

3 http://www.ombudsman.cbc.radio-canada.ca/fr/a-propos/mandat-de-l-ombudsman/

4 http://www.cbc.radio-canada.ca/fr/rendre-des-comptes-aux-canadiens/lois-et- politiques/programmation/journalistique/

Balance

We contribute to debates on issues affecting the Canadian public by presenting a range of opinions. Our news content, across all of our media, covers a wide variety of topics and viewpoints.

When we discuss controversial issues, we ensure that different views are presented in a respectful manner. We take into account their relevance to the debate and the breadth of opinion they represent.

We also ensure that we present these views within a reasonable time.

Impartiality

Our professional judgement is based on facts and expertise. We do not advocate a particular view in issues of public debate. ’

Review of the grievance

This case is more complex than it appears at first glance, since it is based largely on the use of simple articles and prepositions: ‘the’ and ‘some’.

To ensure a good understanding of this review, I first need to point out the context of the law discussed in Alexandra Szacka’s report. At the start of the year, the two Chambers of the Polish Parliament passed a law, which is in fact a series of amendments to existing laws. The stated aim of the measure is to ‘protect the reputation of the Republic of Poland and the Polish Nation’ against claims linking it to crimes committed by the German occupying forces during the Second World War.

For years, many Poles have been outraged by the incorrect use of the phrase ‘Polish death camp’ when referring, for example, to the worst of them all: Auschwitz-Birkenau. It is true that this death camp was located on the territory of present-day Poland, but the Nazi regime (the Third Reich) only built it after Poland was invaded by the German army in September 1939, an act of military aggression that marked the start of the Second World War. In five years, almost a million Jews were killed at this camp built and run by German SS troops. It is estimated that a total of six million Poles died during the war, half of whom were Jews, comprising almost the entire Jewish population of the country at that time.

We should unquestionably avoid referring to ‘Polish death camps’, since responsibility clearly lies with the Nazi regime. Instead, we should refer to Nazi camps set up in Poland. The first, incorrect, phrase is undoubtedly insulting to Poles, because it appears to blame their people or their government for an extermination policy designed and led by the German authorities under Adolf Hitler’s leadership.

That being said, the new law makes no explicit reference to this offensive phrase. Here is how the main article of the law has been drafted:

‘Whoever claims, publicly and contrary to the facts, that the Polish Nation or the Republic of Poland is responsible or co-responsible for Nazi crimes committed by the Third Reich (...) or for other felonies that constitute crimes against peace, crimes against humanity or war crimes, or whoever otherwise grossly diminishes the responsibility of the true perpetrators of said crimes, shall be liable to a fine or up to three years’ imprisonment. ’

This prohibition is complemented by two secondary clauses. The first rules that ‘no offence is committed if the criminal act (...) is committed in the course of one's artistic or academic activity’. The second decrees that it is universally applicable, regardless of who makes the remarks deemed defamatory and regardless of where in the world they are expressed:

‘Irrespective of the regulations in force at the location of committing the criminal act, this Act shall apply to Polish and foreign citizens in the event of committing the offences (...). ’

In short, under this law, nobody in the world has the right to claim publicly that the Polish people or its government share responsibility for the extermination of the Jews during the Second World War or for any other war crime, except in the course of academic or artistic activities,

We will now see whether the Téléjournal from 10 p.m. on February 1 2018 presented the facts accurately. We will first look at the introduction, read by presenter Céline Galipeau:

‘Today, the Polish Senate passed a law forbidding anyone from publicly mentioning the complicity or participation of Polish citizens in the Holocaust. According to experts, this is an attempt to rewrite history, which has angered Israel and caused concern in the United States. Alexandra Szacka. ’

This wording is inaccurate. The law does not forbid anyone from talking about the participation of Polish citizens in rounding up Jews. What it is intended to prohibit is the generalization of blame to the Polish people as a whole. The JSP principle of accuracy has therefore not been complied with here.

The report itself is also not without its problems. Firstly, there is the issue reported by the complainant, namely the second sentence read by the journalist Alexandra Szacka:

‘From now on, whoever dares to say that the Poles were complicit in the extermination of the Jews during the Second World War could be jailed for three years. ’

Technically, this sentence passes the accuracy test, albeit barely.

On one hand, it is true that the word ‘whoever’, as mentioned in the complaint, does not do justice to the two exceptions provided for by the law, namely those relating to academic and artistic activities. Like the words ‘always’ and ‘never’, the word ‘whoever’ is absolute, which seems incompatible with the exceptions. However, it is the word used in the law itself, so I do not think it is inappropriate to have used it here, even though it would have been more accurate to say that ‘most of what is said’ about Poland's responsibility would be penalized.

The phrase then refers to ‘the Poles’: this can be understood as the journalist referring to Poles as a whole, as a society or a people, which is consistent with the aim of the law, but it has to be acknowledged that the wording is not crystal clear. I believe it would have been better to clarify this from the outset, which would have led to a better understanding of the law’s intention, namely to prevent the impugning of the reputation ‘of the Polish Nation’ or the ‘Republic of Poland’. This would have been especially helpful given the two audio clips of the historian Jan Tomasz Gross presented later, which confused the issue further. Here is how:

Jan Tomasz Gross: ‘Non-Jewish Poles, Christian Poles, participated in various ways in the persecution of their Jewish fellow citizens. Now, people in Poland cannot learn the truth about that. ’

Alexandra Szacka: This Princeton University historian and author of several books was one of the first to shed light on the massacre of Jews, not by the Germans, but by Poles. Especially here (Jedwabne), in this village in the east of Poland where 400 were burned alive by their fellow citizens. ’

Jan Tomasz Gross: It’s rewriting history. That's what I find very important, because without knowing their own history, the Poles cannot be a safe and healthy society. ’

What can viewers understand from this line of thought? That ‘people in Poland can no longer learn the truth’ about the fact that some Poles participated in the persecution of the Jews, because massacres such as those in Jedwabne, perpetrated by some Poles, can no longer be told following the passing of this law since its aim is to ‘rewrite history’. Again, that is not what the law says. It does not prevent people from talking about specific acts of persecution of Jews in which some Poles participated; rather, it aims to prevent the Poles as a whole from being presented as responsible for the Nazis’ policy of exterminating Jews on Polish territory.

Later in the report, Alexandra Szacka adds to the misconception caused by Mr. Gross’s words when she says:

‘The role of the Poles in the extermination of the Jews has long been a taboo subject. ’

I believe she should have said ‘the role of the Poles’ or, possibly, ‘the role of many Poles’. The wording ‘the role of the Poles’ seems, again, to apply to the Polish people as a whole. This is just as unfair as referring to the role of ‘the French’ in the extermination of the Jews. Yes, many French citizens participated in the rounding up, arrest and deportation of tens of thousands of Jews to death camps, but for all that, we cannot hold ‘the French’ or ‘the French people’ responsible. That would ignore all those who did not participate, and especially those who bravely fought the Nazi regime despite the Occupation, in the Resistance or otherwise.

Having said that, I understand very well the concerns of Mr. Gross, one of the foremost historians on the subject of the persecution of the Jews in Poland. As he mentions in a third extract from the interview shown at the end of the report, he believes that the nationalist party currently in power in Poland is using the debate around this law to increase its popularity. He may fear that this law will be exploited; that its application will go beyond that stipulated in the text, and it will instead be used to silence those who would only denounce the complicity of some Poles in the persecution of the Jews. Although this fear of excess is understandable, it is for now a mere extrapolation, so it should have been presented as such and not as a description of what the current law provides.

This all gives more weight to the second part of Mr. Kurnicki's complaint, which concerns the notion of balance in the report. On this point, I must first mention that not all issues require an equal number of speakers on each side. This is because the notion of balance, especially in short reports such as those presented in news bulletins, is assessed over a longer period of time. This case, however, is one where it would have been useful to have a different version of events. As well as the statement from

Mr. Gross, the report included a statement from another historian who has also written about the persecution of the Jews in Poland, namely Jan Grabowski from the University of Ottawa. Two men who share the same view are undoubtedly better than one but, in this case, their juxtaposition does not allow the issue to be put into perspective. Of course, as mentioned in Radio-Canada’s response, the report includes an extract from the speech by Polish President, Andrzej Duda, claiming that ‘there was no participation by Poland or the Polish people as a nation’, but this quote does not counteract the misleading impression given by the report on what the law says. I therefore believe that the JSP principle of balance has not been complied with.

This suggests that the principle of impartiality has also not been complied with, although this is in large part a value judgement on the intentions of the journalist and/or the person who wrote the report read on the air by Céline Galipeau.

I asked Alexandra Szacka to send me the text of the report and the suggestion she made to the Téléjournal team for the presentation. The introduction she suggested was consistent with the JSPs. It referred to the prohibition of ‘any public reference to the participation of the Poles (...)’.

However, the written text of the report that she sent to Montreal was slightly different to what she read on the air with regard to the sentence at the centre of the complaint. It states that ‘whoever dares to say that some Poles were complicit (...)’, which falsely implied that all references to the participation of ordinary Polish citizens were banned. In the report, she actually says ‘the Poles’ which, as I mentioned earlier, makes the phrase technically closer to the reality.

I understand why the editor of Téléjournal, reading the text of the report, interpreted it as he did, writing that ‘the law forbids anyone from publicly mentioning the complicity or participation of Polish citizens in the Holocaust’. It was the logical conclusion to draw from reading the report. Unfortunately, it was wrong.

CONCLUSION

The report by the journalist Alexandra Szacka, broadcast on Téléjournal on February 1 2018 on ICI Radio-Canada Télé, did not comply with the principles of accuracy and balance in the Journalistic Standards and Practices of Radio-Canada. The presentation of the report, read on the air, also contravened the principle of accuracy. It is recommended that Radio-Canada monitor the implementation of this law that the Polish President claims to have submitted to the Constitutional Court to ensure that it complies with the rules on freedom of expression. This could be an opportunity to better explain its scope.

Guy Gendron

Ombudsman for French Services CBC/Radio-Canada

March 26 2018