Armed with paint, paper and paste, activists in Berlin and Warsaw manipulate advertising posters in order to spread political messages in the public space. However, German and Polish law enforcement agencies react alerted to this kind of criticism of the State: with home searches and arrests.
Criticism of the health minister
In June 2020, a few weeks before the election for the Sejm, reporters from a liberal daily newspaper accompanied a group of activists in Warsaw on their adbusting route. During a feminist week of action, they hung self-made posters into advertising display cases at bus stops, displaying the (now former) Polish health minister Lukasz S. as a hypocritical saint. The former health minister is embroiled in corruption allegations and responsible for the Polish government’s inhumane abortion policy.
The newspaper published an article including pictures of the action soon after. It sparked outrage from the Polish establishment in light of the upcoming elections. Only two days later, two homes of those allegedly involved in the action were searched. These searches were staged in the media and accompanied by a television crew.
One activist and a fellow campaigner were arrested and detained for two days without being allowed to contact a lawyer. The cops also took all electronic devices and money with them.
The conservative Polish media constructed a crude conspiracy theory out of the action, stating that one of the accused had worked at a newspaper from the opposition (Gazeta Wyborcza) that belongs to the same investment company (Agora) as the advertising firm (AMS) in whose showcases the posters were hung. This was presented as proof that international investors were trying to prevent the re-election of President Duda and his ministers.
No further explanation was given why these financially strong and influential people would make use of a handful of homemade posters. The aim of these absurd theories surely was to illegitimize any criticism of the State as well as to portray it as an attack from outside. In fact, it was AMS (from the „opposition“) who denounced the Adbusters.
Adbusting: a crime?
The underlying legal facts of the case are banal. The advertising showcases are opened with a self-made key in order to hang the self-designed or modified posters inside and therefore make them accessible to the public. Instructions for this can be found on the World Wide Web.
Nothing gets damaged in this process. However, the police authorities claim that this constitutes a particularly serious case of theft, which the Polish law punishes with 6 months to 10 years of jail (in Germany the same offense is punished with a minimum of „only“ 3 months). The high sentence is based on the assumption that by opening the advertising display case, a special protection against theft is circumvented.
In Germany, this is regulated in Section 243 of the German Criminal Code (StGB). A particularly serious case of theft exists, for example, if the perpetrator enters a building or picks a lock in order to commit the theft. However, section 243 II StGB excludes a particularly serious case of theft of low-value items. In a court case in Berlin in 2019, the defense attorney of an alleged adbuster assumed a poster value of 5€. A brief price comparison at larger print shops suggests that the value of a poster would indeed be of such a rather manageable order.
In many cases, it is even questionable whether the basic offense, theft, has been committed. Many adbusters do not take the original posters with them. They leave them rolled up in the display cases after they have hung up their own posters. This rules out criminal liability for theft with regard to the poster in the display case. Thus, as long as the activists bring posters that they have made or printed themselves, no act of theft has been committed.
Another accusation frequently used is damage to property, but since the boxes remain undamaged, the altered poster is brought up as evidence for this offense. The public prosecutor’s office in Berlin has already acknowledged that, if the original poster can be easily re-hung, it is probably difficult to prove that there was damage to property.
The motivation for law enforcement to puff up the criminal offense is the fact that such massive encroachments on fundamental rights, like house searches or the securing of DNA traces, would simply be disproportionate and unlawful in a minor offense like theft. In the case of shoplifting, the forensics team would never secure possible trances nor would the police search an apartment because of a stolen headphone.
Freedom of Expression and Criticism of the State
We must therefore ask why adbusting entails such drastic reactions from law enforcement agencies. In Poland, an authoritarian party (the PiS) has been in government since 2015. The PiS strives to suggest nationwide approval and satisfaction with its own policies. By criminalizing domestic criticism and framing it as externally controlled, it is not only deprived of legitimacy, it is also used to create an image of the enemy abroad. The same thing is happening now, when the protestors against the abortion law are being called criminals whith the goal of destroying Poland. In Germany, it is mainly criticism of the German armed forces (Bundeswehr) and the police that has triggered exaggerated actions by authorities. In a statement justifying a home search, the state bureau of investigation (LKA) states that the altered posters „downright ridicule“ the Bundeswehr. The police does not like to be criticized.
Although there are no TV teams in Germany accompanying the police live on their home searches, overambitious prosecution is known to adbusters in Germany as well. All of German’s intelligence agencies have posters in advertising as a topic on their agenda, presumably seeing them as a threat. In its 2018 report, the German Federal Office for the Protection of the Constitution mentions altered Bundeswehr posters in the same breath as violence and physical attacks on officials. Additionally, a parliamentary question revealed that the German Counter-Extremism and Counter-Terrorism Center (GETZ), which was initially created in 2012 to investigate right-wing extremist terror, dealt with political poster art four times in 2018/2019.
BT-Drucksache 19/16887 p.6 available at: https://www.ulla-jelpke.de/wp-content/uploads/2020/02/KA-19_16887-Adbusting-komprimiert-1.pdf
The German Military Counterintelligence Service has also been monitoring adbustings on a regular basis since at least 2016.
BT-Drucksache 19/16887 p.10 available at: https://www.ulla-jelpke.de/wp-content/uploads/2020/02/KA-19_16887-Adbusting-komprimiert-1.pdf
Such framing, which equates this form of action with terrorism, is not only highly problematic, it is also not without consequences. Posters in advertising showcases are a case for the State Security Service; in addition to home searches, in some cases the police even took DNA samples from seized posters in order to track down the perpetrators. They have also confiscated a telephone, probably intending to obtain photographs and contacts.
In an article on a blog that deals with constitutional law, the lawyers Prof. Dr. Andreas Fischer-Lescano and Andreas Gutmann criticize this approach. They see the comprehensive prosecution of adbusting in this country as being primarily fueled by its political content. Such action against a certain spectrum of opinions is, however, questionable under constitutional law, since provocative posters are protected by the freedom of opinion, they explained. If the alteration of posters is prosecuted more severely than comparable damage to property that lacks political content, the right to political expression is under attack.
Both Germany and Poland react to politically unpleasant expressions of opinion with the full force of their repressive machine. They turn a blind eye when the limits of the rule of law are exceeded. For example, the Berlin Senate for the Interior under State Secretary Torsten Akmann and Andreas Geisel of the SPD (Social Democratic Party) responded to a parliamentary question about the investigations into adbusting by stating that it was a matter of „minor crime,“ but that since issues such as anti-militarism and anti-repression were touched upon, the police measures in this case were proportionate. It is unlikely for Polish officials to come to a different conclusion.
Berlin House of Representatives, printed matter 18 /21 553, p. 3, available at: https://pardok.parlament-berlin.de/starweb/adis/citat/VT/18/SchrAnfr/s18-21553.pdf
Instead of dealing with unpleasant criticism and tackling problems, certain fields of opinion are suppressed and denigrated by the social democrats in Germany just as passionately as by the Orbans in Eastern Europe.