Hungary’s conservative government stirred international outrage when tough media regulations went into effect January 1, the same day the country assumed the presidency of the Council of the European Union. The laws transferred all assets of public service media—three television stations, three radio stations, and one national news service—to a state fund, installed new directors appointed by Prime Minister Viktor Orbán’s Fidesz party to run them, imposed the same content regulations on all media, outlined sanctions and fines for violating the regulations, and gave a new National Media and Infocommunications Authority power to shut outlets down.
In December, Amy Brouillette spoke to human rights lawyer Éva Simon of the Budapest-based Hungarian Civil Liberties Union (TASZ), which has petitioned the country’s top court to strike provisions of the legislation it argues violate Hungary’s constitutional guarantee of free press, European laws, and clash with basic principles of free media. This is an edited transcript of their conversation.
Hungary’s new legislation is the most radical change to the country’s media system since 1989. It was fast-tracked through Parliament in less than six months with little opposition or debate. Suddenly a democratic country is facing the loss of press freedom. How did this happen so quickly?
Fidesz has a two-thirds majority in Parliament, so at present there is no resistance to its policies. Hungary’s Freedom of Information laws require governments to make bills available to the public before voting on them. The government has avoided this obligation by using a parliamentary procedure that lets individual MPs submit legislation in order to rush bills through Parliament without review or input from media experts, civil society groups, or the public.
What parts of the law is TASZ challenging?
The content regulations and specifically the obligations that the media inform the public of events important to the “Hungarian nation,” and offer “balanced news” that serves the “public interest,” does not infringe on “public morality,” violate “public order,” or offend the “minority,” the “majority,” or “church or religious groups.” No one has any idea what any of this means or how authorities will interpret it. It seems this would discourage or even eliminate critical journalism.
We’re also challenging new rules on source protection. Journalists must reveal their sources if they report anything relating to vaguely defined issues of crime prevention, public order, or national security, at the demand of the Media Authority and without a court order. This essentially eliminates investigative journalism in Hungary. We believe this undermines the media’s most critical watchdog role and could have a ‘chilling effect’ on the press.
But how are those provisions unconstitutional?
There are already provisions in the criminal code that regulate media content—hate speech, for instance. There are also provisions dealing with defamation and breaches of privacy. So from the constitutional law perspective, these new regulations put an undue burden on the press, and violate the freedom of expression rights guaranteed by Article 61 of the constitution.
What types of media does this effect?
This law imposes the same content regulations on all media—print, online, broadcast—which is unprecedented for Hungary. And it’s is not in line with modern media-regulation standards, which use different regulatory standards for different media.
So blogs are now regulated, too?
Yes, the law extends to online news portals and blogs that either “inform, entertain, or educate,” have any kind of advertising content and have an editor. So basically a blog with a Google ad falls under the new definition of the “press” and can be fined and shut down for publishing content deemed offensive to public morals, for instance, at the media authority’s discretion. This goes against the most fundamental notion of press independence. The government should not have the power to determine what is news.
By the “government” do you mean the new Media Authority?
Yes, which is run by members who were selected by and are directly connected with the government. So a former Fidesz party member heads the Media Authority, and she now decides whether any kind of media—online, blogs, print, radio, television—meet these content requirements. If a radio station that plays music but also runs 10 minutes of news every four hours, or a web-based video service or a professional blog offends “public morality,” they can now be sanctioned and fined under the law.
With a two-thirds majority in Parliament, Orbán says he is acting on the “will of people.” And so far, there has been little public outcry over the media law. Does this matter?
Keep in mind, only 53 percent of people who went to the polls voted for Fidesz, but it ends up that the government has a two-thirds majority according to the Hungarian electoral system. And changing the media system was not mentioned by Fidesz during their campaign—this was introduced by the party right after they won in April. So the government’s claim of having a popular mandate to make these kinds of laws is questionable.
And the “peoples’ will” argument is typical populist rhetoric and can be quite dangerous. When a government is elected they have a certain mandate to govern within the existing constitutional framework—unless there is a revolution, which there was not. Certain fundamental rights should not be determined by the “will of the people” but rather ensured and safeguarded by governments and the courts. Authorities must offer very strong arguments when regulating the press—in the case of hate speech, for instance. But the “peoples’ will” is not an argument for creating the kind of media system that went into effect this January. Even though polls now show support for Fidesz is slipping, it’s unlikely the government will change its “will of the people” rhetoric.
Fidesz also maintains its media legislation is in line with democratic media standards and other European states. Is this true?
No. The new Hungarian media law is a patchwork of the worst practices in the EU, with some extra limits on freedom of the press. It clashes with the fundamental principles of press independence in democratic societies and is based on how media worked fifty years ago in Hungary, when there were few media sources and people did not have the opportunity to get information. The public no longer relies on a single media source, where if the news were not “balanced” then they would be misinformed or misled.
There are some serious problems with free press issues within the EU and other Western democracies. Lots of governments regulate media in different ways and, for instance, filter Internet content. Think about the Decency Act in the US or the French model, which is totally opposed to net neutrality. There is libel tourism in Britain and ownership issues in Italy. Still, there is no precedent within the EU for a single, government-appointed authority to have powers to regulate content of all types of media, or to impose fines to Internet, broadcast, and print outlets, and to suspend or shut them down for not paying. What we’re facing at this stage is a single government exerting their influence on the media in a way we’ve not seen since 1989.
Isn’t Hungary bound to comply with EU media standards?
The European Commission can examine whether the law is in line with the EU’s Audiovisual Media Services Directive, which regulates television and on-demand services, and the Electronic Commerce Directive, which regulates ISPs and liability issues, and some competition directives. If the law clashes with an EU directive, they can examine and oblige the member state to modify the law. Basic rights are also protected by Article 11 of the EU Charter of Fundamental Rights, which guarantees from of expression and the press.
The EU has come under pressure to act. But what power does it have?
When an EU member state puts limits on freedom of expression in ways that clash with EU minimum standard regulations this can be brought to the European Commission. The EU can also put political pressure on a member state, which is what’s going on now. You can turn to the European Court of Human Rights if there is a case—for instance, if a blogger is fined under the new media law for violating the content regulations, and the case goes through all levels of the Hungarian courts. They can rule that the decision violates Article 10 of the European Convention on Human Rights, which guarantees freedom of expression. The Court might state that a certain piece of legislation is not in line with the Convention and can impose heavy fines on the Hungarian government.
Fidesz recently passed a law limiting the Constitutional Court’s powers after the Court ruled against the government over a controversial new pension tax. Given Parliament’s efforts to eliminate the court’s balance-of-power role, why bring your challenge to this particular court?
At the moment, the Constitutional Court in Hungary is the only court with the power to nullify this kind of law. Freedom of expression in Hungary in the last twenty years has been a very important issue, taken very seriously by the court, for obvious historical reasons. Every government since 1990 has submitted laws limiting freedom of expression and the court usually has decided on behalf of freedom of expression.
The government plans to submit a new constitution this spring, which many worry could further weaken the Constitutional Court and Hungary’s balance-of-powers system. What will happen then?
We have no idea what kind of civil rights the new constitution will safeguard, whether or not we will have a Constitutional Court or what kind of powers it will have. We have been criticizing the constitution re-writing process, as we believe the current constitution ensures the proper functioning democratic system based on respect for human rights and the rule of law for the first time in Hungary’s modern history. My hope is that the court would consider the petition before the new constitution is passed and that it would rule as it historically has, for freedom of expression.