Pathostreaming crime project

Key assumptions of the amendment:

The draft of changes in the KK assumes a criminality of publishing online content showing:

It will besides be penalized to print the content that makes it look like the acts mentioned above. The task promoter has introduced a kind of qualified crime where patostreaming aims to accomplish an asset benefit and a countertype, excluding criminal liability in the event of action to defend a socially legitimate interest or worthy of taking into account a private interest.

For the above actions, prison sentences are provided for between 3 months and 5 years and six months to 8 years.

Social context and examples of patostreaming

The phenomenon of patostreaming creates large controversy and social unrest. It involves broadcasting violent, degrading or criminal behaviour on the net – frequently not only for the amusement of viewers, but besides for profit. Many people have made a way of earning from the pathostreaming. The number of recipients of broadcasts, the alleged followers, sometimes reaches respective thousand, and any of them support the creators financially through donations.

The phenomenon of patostreaming was made public in public debate over a number of shocking incidents broadcast live by alleged patostreamers. The explanatory memorandum of the bill points to respective peculiarly excruciating cases that have illustrated the scale and brutality of this practice.

One of the most drastic examples was the activity of the Russian pathostreamer and youtuber Stasa ReeFlaya, who broadcast live in December 2020 forcing his pregnant partner to go outside in her underwear itself, despite the prevailing frost. Even erstwhile the female blacked out, the transmission was not interrupted. According to media reports, viewers paid for the chance to watch this account about $1,000.

Patostreaming not only violates social and moral norms, but frequently involves committing crimes in front of thousands of spectators – parents from Dąbrowa Górnicza broadcast live abuse of their own child, which caused outrage to the public. Patostreamer Daniel Magical, sentenced by a final conviction for beating, in 1 of the broadcasts publically praised the assassination of the president of Gdańsk Paweł Adamowicz. For any online offenders, judgments have already been passed, e.g. Raponix has been sentenced to a year of imprisonment suspended for 3 years for assault, insult and public approval of the crime; and Gurala The defendants were charged with incitement to hatred, usage of criminal threats, inducement to commit crimes and urging persons under the age of 15 to undress in front of the camera, and sentenced to 6 months of probation for 2 years, and were besides subject to probation and fined.

Pathostreaming problems

Currently, patostreaming may exhaust the signs of many crimes, specified as: discriminatory force (Art. 119 KK), wellness harm (Art. 156, 157 § 2 KK), participation in a fight or beating (Art. 158 KK), illegal imprisonment (Art. 189 KK), criminal threat (Art. 190 KK), harassment (Art. 190 KK), harassment (Art. 191 KKK), sexual abuse of a insignificant (Art. 200 KKK), grooming (Art. 200 KKKK) public display of pornographic content (Art. 202 KKKK), abuse (Art. 207 KKKKKK), defamation (Art. 212 KKKKKK), insult (Art. 216 KKKKK), violation of bodily inviolence (Art. 217 KKKKKK), demolition of property (Art. However, attempts to enforce specified cases have encountered crucial difficulties so far, as confirmed by the results of the 2019 investigation conducted by the company Puzzle Research on behalf of the Foundation “We give the children strength” in cooperation with the Ombudsman. They identified problems with appropriate legal qualification of the presented behaviours in the light of the existing rules, as well as difficulties in identifying persons present in recordings or participating in broadcasts as commentators and the issue of conflict between freedom of expression and artistic expression and the rights of others.

The proposed changes aim to destruct these barriers and enable a more efficient consequence to content with a advanced degree of social harm.

Project opinions

The task was given an opinion by the State Commission on the prevention of the sexual exploitation of minors under the age of 15 and the ultimate Court. Both have highlighted the negative effects of the pathostreamer actions, but have not supported the legislative solutions proposed.

The State Anti-Sex Action Commission for minors under the age of 15 indicated that the introduction of Article 255b of the KK constitutes an crucial step towards the protection of the dignity and safety of minors in digital space, but the task needs to be redesigned. In the first place, the Commission pointed out that the knowing of pathostreaming was besides narrow. According to the committee, a regulation limiting criminalisation only to cases of publication of content presenting intentional acts prohibited by imprisonment of at least 5 years and covering only selected categories of offences (e.g. against the life or wellness of sexual freedom of the household and care) is insufficient, as the content of patostreaming goes beyond the framework of these crimes, covering content specified as self-mutilation, humiliation and ridicule, including in the context of ethnicity, disability, sex identity or material situation. However, specified content frequently fails to meet the criteria for crime but is highly socially harmful and deserves a criminal response. akin concerns apply to crimes which are punishable by a punishment of little than 5 years.

It was besides doubtful to apply the criterion of "leading to humiliation or humiliation" to the penalisation of patostreaming content related to the violation of physical immunity. In the Commission's view, the application of specified a subjective criterion may consequence in evidence difficulties, arbitrariness of assessments and a regulation on the protection of victims.

The Commission is besides proposing to change the location of the fresh provision in the KK structure, as the current proposal raises doubts from the point of view of the strategy of that legislation.

Critical comments were besides made by the ultimate Court, which indicated that the justification for the criminalisation was insufficient. According to the ultimate Court, in the current legal state, the behaviour of pathostreamers remains unpunished and there is no request for additional criminalisation, although the court sees that specified a request may arise in the case of persons another than the perpetrator of the recorded crime. According to the ultimate Court, the action of pathostreamers – at least to any degree – is covered by the freedom of expression guaranteed by the Constitution of Poland and the ECHR.

The reservations were besides caused by the penalisation of the dissemination of recordings that pretend to have committed a crime, which, according to the opinion of the opinioner, may lead to excessive restrictions on freedom of expression and artistic expression. The ultimate Court besides criticised the amount of the sanction provided for a kind of qualified offence, i.e. action to get a property benefit, recognising it as disproportionate to another KC regulations.

In conclusion, the ultimate Court has stated that the proposed criminalisation has not been sufficiently substantiated and requires an in-depth analysis of the merits and proportionality of criminal law interference. It besides indicated the request to take into account the possible impact on circumstantial social groups, including digital creators, whose activities may be inadvertently covered by the fresh rules.

The draft is presently in the committee's work phase.